T  • 


^^ 


THE 

CONNECTICUT  CIVIL  OFFICER, 

IN  THREE  PARTS. 

PART    I.    CONTAINING  THE  POWERS  AND  DUTIES  OP 

JUSTICES  OF  THE  PEACE. 

PART  II.    CONTAINING    THE  POWERS  AND   DUTIES    OF 

CONSTABLES. 

PART    III.    CONTAINING    THE    POWERS    AND    DUTIES    O> 

SELECT  MEN ; 

WITH  SUITABLE  AND  APPROVED  FORMS  FOR  EACH. 

TOGETHER   WITH   NUMEROUS    LEGAL    FORMS,    OF    COMMON   USE, 
AND    GENERAL    CONVENIENCE. 


BY  JOHN  M.  NILES,  ESQ. 

Atsotiate  Judge  of  the  County  Court  for  Hartford  County. 


HARTFORD, 
HUNTINGTON  &  HOPKINS. 

1823. 


DISTRICT  OF  CONNECTICUT,  ss. 

BE  IT  REMEMBERED,  That  on  the  second  day  of  January, 
L.  S.  in  the  forty-seventh  year  of  the  Independence  of  the  Uni- 
ted States  of  America,  HUNTING-TON  &  HOPKINS,  of  the 
said  district,  have  deposited  in  this  office  the  title  of  a  book,  the 
right  whereof  they  claim  as  proprietors,  in  the  words  following  — 
to  wit  :  "  The  Connecticut  Civil  Officer,  in  three  parts  —  Part  I. 
'  containing  the  powers  and  duties  of  Justices  of  the  Peace  —  Part 
'  II.  containing  the  powers  and  duties  of  Constables  —  Part  III. 
'•  containing  the  powers  and  duties  of  Select-men  ;  with  suitable 
'  and  approved  forms  for  each.  Together  with  numerous  legal 
'  forms,  of  common  use,  and  general  convenience.  By  JOH>  M: 
'  NILES,  Esq.  Associate  Judge  of  the  county  court  for  Hartford 
'  county."  In  conformity  to  the  Act  of  the  Congress  of  the  Uni- 
ted States,  entitled  "An  Act  for  the  encouragement  of  learning, 
by  securing  the  copies  of  Maps,  Charts,  and  Books,  to  the  au- 
thors and  proprietors  of  such  copies,  during  the  times  therein 
mentioned." 

CHARLES  A.  INGERSOLL, 
Clerk  of  the  District  of  Connecticut. 
A  H.  copy  of  Recara, 


Clerk  of  the  District  of  Connecticut. 


PREFACE. 


THE  delay  in  the  publication  of  this  work  has  been  occa- 
sioned by  a  partial  relinquishment  of  the  undertaking,  on  the 
part  of  the  publishers,  soon  after  the  original  proposals  were 
issued,  which  was  the  result  of  circumstances,  not  necessa- 
ry to  be  disclosed  ;  and  in  consequence  of  which,  the  work 
was  not  commenced  until  a  few  months  since,  within  which 
period  it  has  been  prepared  for  the  press,  in  the  time  that 
the  author  could  spare  from  other  avocations.  This  fact  is 
mentioned  to  shew  the  cause  of  the  delay,  which  may  have 
occasioned  disappointment  to  subscribers,  and  seem  to  re- 
quire some  explanation,  and  not  to  claim  indulgence  towards 
the  work  for  any  deficiences  or  errors  it  may  contain,  as 
the  haste  with  which  it  has  been  compiled  can  afford  no 
excuse  for  its  faults. 

I  have  been  fully  sensible  that  accuracy  and  simplicity 
constitute  the  principal  value  of  a  publication  of  this  de- 
scription, and  have  bestowed  upon  it  that  degree  ofcare  and 
attention,  which  I  trust  will  render  it  a  safe  guide  to  those 
officers  for  whose  use  and  convenience  it  is  intended. 
Whilst  I  have  endeavoured  to  supply  all  forms,  deemed 
necessary,  in  the  discharge  of  the  official  duties,  both  of 
Justices  of  the  Peace  and  Constables,  these  constitute  but  a 
small  part  of  the  work.  To  give  forms  without  directions 
as  to  the  use  of  them,  would  be  in  some  measure  like  put- 
ting the  tools  of  a  mechanic  into  the  hands  of  a  person  wholly 
unacquainted  with  the  art  or  trade  in  which  they  are  to  be 
used. 

It  has  been  my  intention  to  make  this  work  a  directory 
and  manual,  to  Justices  of  the  Peace  and  Constables,  in  the 
discharge  of  their  various  and  often  important  duties  :  how 
far  I  have  succeeded  in  this,  I  submit  to  the  public. 
With  respect  to  Justices  of  the  Peace,  I  have  aimed  to 
specify  their  numerous  official  acts,  both  of  a  ministerial  and 
judicial  nature,  and  to  give  directions  for  their  proceedings 
in  both  civil  and  criminal  matters,  connected  with  suitable 
forms,  and  to  present  such  an  abstract  or  general  view  of 

2<          & 


iv  PREFACE. 

the  law  as  appeared  to  be  necessary  for  these  objects.  A? 
to  Constables,  their  duties  lying  within  a  narrower  compass. 
I  have  endeavoured  to  present  a  complete  view  of  them, 
and  to  give  a  digester  summary  of  the  law  relating  thereto. 
I  have  given  only  a  very  general  view  of  the  duties  of 
Select-men. 

With  a  view  to  perspicuity,  and  to  prevent  misapprehen- 
sion, I  have  been  particular  to  separate  matters  belong- 
ing to  the  same  general  subject,  and  to  treat  of  them  with 
as  much  distinctness  as  possible,  bearing  in  mind  that  I 
was  writing  for  those  who  in  general  are  unacquainted  with 
the  elements  of  legal  science. 

There  is  a  disagreeable  responsibility  attending  a  publi- 
cation of  this  description  ;  as  from  its  humble  character, 
Success  will  afford  no  credit,  whilst  a  failure  must  subject 
the  compiler  to  deserved  animadversion.  If  it  contains 
errors,  its  being  designed  for  common  use,  and  by  those 
who  in  general  will  not  be  capable  of  detecting  the  same, 
must  render  them  the  more  dangerous.  And  that  no  er- 
rors should  have  intervened,  is  hardly  to  be  expected  ;  but 
I  trust  they  will  not  be  found  so  numerous  or  essential  as 
to  impairits  usefulness. 


INTRODUCTION. 


THE  first  section  of  the  fifth  article  of  the  Constitution  of  this 
State,  provides  that  the  judicial  power  shall  be  vested  in  a  Su- 
preme Court  of  Errors,  a  Superior  Court,  and  such  inferior 
courts  as  the  General  Assembly  may  establish.  The  second  sec- 
tion provides,  that  there  shall  be  appointed  in  each  county  a  suf- 
ficient number  of  Justices  of  Peace,  with  such  jurisdiction  in 
civil  and  criminal  matters  as  the  General  Assembly  may  pre- 
scribe. The  third  section  directs  that  the  judges  of  the  supreme 
court  of  errors,  of  the  superior  and  inferior  courts,  and  justices  of 
the  peace,  shall  be  appointed  in  such  a  manner  as  may  be  prescri- 
bed by  law.  Since  the  adoption  of  the  constitution,  this  is  the 
basis  of  the  judicial  department  in  Connecticut,  although  the 
constitution  made  no  alteration  in  the  system. 

It  is  provided  by  statute,  (a)  that  the  judges  of  the  supreme 
court  of  errors,  of  the  superior  and  county  courts,  judges  of  pro- 
bate and  justices  of  the  peace,  shall  be  appointed  by  the  concur- 
rent vote  of  the  Senate  and  House  of  Representatives ;  the  judg- 
es of  the  court  of  errors  and  the  superior  court,  are  required  to 
be  chosen  by  ballot  in  each  house,  and  hold  their  offices  during 
good  behaviour,  removable  by  impeachment,  or  by  the  govern- 
or, on  the  address  of  two  thirds  of  the  members  of  each  house  of 
the  assembly.  The  judges  of  the  county  courts,  of  probate,  and 
justices  of  the  peace,  are  chosen  annually,  and  continue  in  office 
until  the  20th  of  June,  in  the  year  next  following  their  appoint- 
ment, unless  sooner  removed  or  suspended  by  the  general  assem- 
bly. The  mode  of  proceeding  is  by  bill,  as  in  the  case  of  other 
bills  for  public  acts;  it  may  originate  in  either  house.  A 
nomination  of  the  judicial  officers  of  each  county,  is  usually  made 
in  county  meetings,  consisting  of  the  representatives  of  the  seve 
ral  towns  in  the  county.  These  nominations  are  introduced  into 
the  house  of  representatives  in  the  form  of  bills  ;  the  judge  of  the 
county  court,  the  associate  judges,  and  judges  of  probate,  in  sep- 
arate bills,  but  the  justices  of  the  peace  of  each  county  all 
in  one  bill.  These  bills  can  be  amended  by  erasing,  adding, 
or  substituting  names,  in  either  house ;  but  both  houses 
must  concur  as  to  each  name,  or  the  person  is  not  appointed. 
After  the  county  bills,  as  they  are  called,  are  passed,  other  bills 
are  usually  introduced  by  members  of  either  house,  for  the  ap- 
pointment of  additional  justices  of  the  peace. 

The  judges  of  the  superior  and  county  courts,  and  judges  01 
probate,  receive  separate  commissions  ;  but  the  justices  of  each 
county  are  commissioned  jointly,  in  one  commission,  consti- 

(a)  St.  p.  149, 

1 


VI  INTRODUCTION. 

tuting  them  justices  of  the  peace  within  and  for  the  county,  for 
which  they  are  appointed,  to  which  their  authority  is  confined. 
No  judge  or  justice  of  the  peace,  is  capable  of  holding  his  office 
after  he  arrives  to  the  age  of  seventy  years  (c).  No  justice  of  the 
peace  can  hold  the  office  of  sheriff,  deputy  sheriff  or  constable,  or 
be  a  taverner  (d). 

All  judges  and  justices  of  the  peace  are  to  be  sworn  before  en- 
tering upon  the  duties  of  their  office,  and  without  which  their  acts 
are  void.  Before  the  adoption  of  the  constitution,  there  were 
specific  oaths  for  judges  of  the  courts  and  justices  of  the  peace; 
but  since  the  adoption  of  the  constitution,  the  general  oath  pre- 
scribed therein,  which  is  both  an  oath  of  allegiance  and  of  office, 
is  administered  to  the  members  of  the  assembly,  and  to  all  state 
and  judicial  officers.  This  oath  which  is  now  to  be  administered 
t.o  justices  of  the  peace,  is  as  follows :  "  You  do  solemnly  swear 
' "or  affirm,  as  the  case  may  be)  that  you  will  support  the  constitu- 
tion of  the  United  States,  and  the  constitution  of  the  state  of  Con- 
necticut, so  long  as  you  continue  a  citizen  thereof,  and  that  you 
will  faithfully  discharge,  according  to  law,  the  duties  of  the  office 
of  to  the  best  of  your  abilities.  So  help  you  God." 

The  office  of  justice  of  the  peace  is  very  ancient,  and  like  most 
other  human  institutions,  has  in  the  progress  of  civilization  and 
improvements  gradually  experienced  important  changes.  It  was 
derived  to  us  from  England,  the  land  of  our  fathers,  with  the  fun- 
damental principles  of  our  jurisprudence  and  civil  law.  In  that 
country  it  appears  to  have  originated  from  the  office  of  conserva- 
tor of  the  peace,  which  was  a  mere  executive  office,  held  in  some 
instances  by  prescription,  or  as  incident  to  the  tenure  of  fiefs  or 
freholds,  and  in  others  by  appointment  of  the  freeholders  of  the 
county.  In  the  first  year  of  Edward  III.  commissioners  of  the 
peace  were  appointed  by  statute,  which  superseded  the  office  of 
conservators  of  the  peace.  They,  however,  continued  only  con- 
servators, or  keepers  of  the  peace,  until  the  34th  year  of  the 
same  reign,  when  the  power  of  trying  felonies  was  conferred  up- 
on them  by  act  of  parliament ;  and  being  invested  with  judicial 
authority,  they  soon  acquired  the  more  dignified  and  honourable 
appellation  of  justices.  This  appears  to  have  been  the  origin  of 
the  judicial  power  of  justices  of  the  peace,  or  indeed  of  the  office 
itself,  for  previously,  the  office  of  conservator  and  commiss:oner 
of  the  peace,  had  in  its  duties  much  more  resemblance  to  that 
of  constable  than  to  that  of  justice  of  the  peace  at  the  present  day. 
From  that  period  the  authority,  duties,  and  jurisdiction  of  jus- 
tices of  (he  peace,  have  been  enlarged  and  extended  from  time 
io  time  by  numerous  statutes. 

In  tl.e  'colony  of  Connecticut,  the  office  appears  to  hare  been 
adopted  without  the  authority  of  any  express  statute,  and  its  ex- 
istence is  probably  coeval  with  the  colony.  They  were,  botif 

[<•)  COT?.  .trt.Sth.  (d}Sl.p.  148. 


INTRODUCTION.  Vll 

the  revision  oi  1702,  called  commissioners,  but  possessed  judicial 
authority,  and  in  the  oldest  statutes  of  the  colony,  commissioners 
were  associated  with  magistrates  and  select-men  in  the  adminis- 
tration of  justice.  The  assistants,  as  they  were  afterwards  call- 
ed, were  then  denominated  magistrates,  and  originally  their  pri- 
mary powers  and  duties  were  of  a  judicial  nature. 

(e)  The  compact  formed  by  the  towns  of  Hartford,  Windsor 
and  Wethersfield,  in  1639,  provided  for  establishing  a  general 
court  to  be  holden  in  April  and  September,  to  consist  of  the 
^overnor,  at  least  four  magistrates,  and  a  majority  of  the  deputies 
which  were  to  be  chosen  by  the  towns.  This  body  united  all  the 
powers  of  government,  executive,  legislative  &  judicial.  The  par- 
ticular courts,  which  had  previously  been  constituted,  consisting 
of  a  certain  number  of  mag;strates,  still  continued  to  be  held,  from 
which  appeals  were  made  to  the  general  court.  In  October  the 
same  year,  the  several  towns  were  authorised  to  establish  a  town 
court,  to  consist  of  three,  five,  or  seven  of  their  principal  inhabit- 
ants, one  to  be  chosen  moderator.  This  court  was  to  be  holden 
once  in  two  months,  and  had  jurisdiction  as  to  persons  over  the 
inhabitants  of  the  town  only,  and  as  to  cases,  of  matters  of  tres- 
pass, and  contract,  not  exceeding  forty  shillings.  An  appeal 
might  betaken  from  its  decisions  to  the  particular  court.  This 
is  evidently  the  origin  of  justices'  courts,  and  of  the  civil  jurisdic- 
tion of  justices  of  the  peace  in  this  state.  In  1647,  a  question  arose 
as  to  what  number  of  the  magistrates  formed  a  quorum,  to  hold  a 
particular  court ;  and  it  was  finally  decided  that  the  governor 
or  deputy  governor,  and  two  magistrates,  had  power  to  hold  such 
court,  and  that  in  case  the  governor  or  deputy  governor  should 
not  be  present,  three  magistrates,  one  to  be  chosen  moderator, 
were  competent  to  hold  the  court  (f ).  This  court  was  attended 
by  a  jury,  but  all  causes  under  forty  shillings  could  be  tried  by 
the  court. 

In  1665,  after  the  union  of  the  two  colonies  of  Connecticut  and 
New-Haven,  by  the  charter  of  Charles  II.  the  court  of  assistants 
was  established,  consisting  of  at  least  seven  assistants,  the  name 
of  magistrate  having  at  this  time  been  changed  to  that  of  assist- 
ant. The  next  year  the  colony  was  divided  into  the  counties  of 
Hartford,  New-Haven,  New-London  and  Fairfield,  and  a  county 
court  established  in  each,  consisting  of  one  assistant,  and  three 
or  more  commissioners.  These  courts  superseded  the  particular 
courts.  In  1669,  the  town  courts  were  re-organised,  and  were  to 
consist  of  an  assistant,  or  a  commissioner,  and  at  least  two  of  the 
select-men (#.)  By  subsequent  acts,  any  one  assistant  was  authori- 
sed to  try  all  causes  arising  in  his  county  without  a  jury,  wherein 
the  matter  in  demand  did  not  exceed  forty  shillings  ;  and  in  those 
towns  where  no  assistant  resided,  the  same  power  was  given  to  a 

(e}  Pref.  1st,  Conn.  Rep.  (/}  Pref.  1,  Con.  Rep. 


Vlll  INTRODUCTION. 

commissioner  and  two  select-men.  From  these  courts  an  appeal 
was  allowed  to  the  county-court,  and  from  the  decisions  of  that 
court  to  the  court  of  assistants,  and  from  thence  to  the  general 
assembly,  which  was  the  dernier  resort  in  all  matters  of  law  and 
equity. 

In  1698,  it  was  provided  that  in  each  county,  at  least  four  justi- 
ces of  the  peace  should  be  appointed,  three  of  whom  were  to  be 
justices  of  the  quorum,  who,  with  a  judge  to  be  appointed  for  that 
purpose,  were  to  hold  county  courts ;  and  subsequently,  three 
justices  of  the  quorum,  were  authorised  to  hold  the  court  in  the 
absence  of  the  judge.  The  judge  and  justices  of  the  quorum, 
were  at  first  appointed  during  the  pleasure  of  the  general  assem- 
bly ;  but  afterwards  were  appointed  annually.  The  judicial  pow- 
er of  justices  of  the  peace,  appears  at  this  period  to  have  been  es- 
tablished, and  to  have  superseded  the  inferior  courts  held  by  an 
assistant,  and  by  a  commissioner  and  two  select  men.  By  nu- 
merous statutes,  their  jurisdiction  was  extended  to  various  sub- 
jects, enlarged,  and  the  right  of  appeal  in  certain  cases  taken 
away.  Their  jurisdiction  in  civil  matters  was  finally  fixed  at  fif- 
teen dollars,  with  the  right  of  appeal,  ordinarily  in  cases  exceeding 
seven,  and  so  continued  until  the  year  1821,  when  it  was  extended 
to  thirty-five  dollars,  with  the  right  of  appeal  in  causes  exceeding 
seven  dollars,  as  before.  The  constitutionality  of  this  law  has 
been  doubted,  on  the  ground  of  its  interfering  with  the  right  of 
trial  by  jury,  and  it  is  understood  that  a  cause  from  Fairfield 
county  is  now  pending  before  the  court  of  errors,  in  which  this 
question  is  to  be  discussed  and  decided.  It  is,  however,  hardly 
to  be  expected  that  the  court  will  declare  the  law  void ;  it  would 
be  a  subject  of  regret  if  thev  should,  as  so  far  as  we  are  enabled 
to  judge  from  experience,  it  is  promotive  of  convenience  and 
economy. 

The  criminal  jurisdiction  of  justices  remains  the  same  as  before 
the  statute  last  referred  to;  it  embraces  a  great :  variety  of  matters, 
and  comprises  a  considerable  part  of  their  duties.  In  addition  to 
their  judicial  authority,  both  civil  and  criminal,  they  are  by  dif- 
ferent statutes  entrusted  with  various  powers,,  and  required  to 
discharge  various  duties  of  a  ministerial  nature. 


PART  J. 


CHAPTER  I. 

Of  the  ministerial  porcers  and  ditties  of  Jit  slices  of  the  Peace. 

THE  powers  and  duties  of  Justices  of  the  Peace,  may  be 
divided  into  those  which  are  judicial,  and  those  which  are 
ministerial ;  although  in  many  cases  they  partake  of  both. 
The  latter  consist  of  the  authority  which  they  possess  at 
common  law,  and  which  is  in  general  recognized  by 
Statute,  as  conservators  of  the  Peace,  and  the  various  pow- 
ers and  duties  which  have  been  entrusted  to  them  by  dif- 
ferent statutes,  of  an  executive  or  ministerial  nature.  This 
and  several  succeeding  chapters  are  devoted  to  a  consid- 
eration of  their  ministerial  duties,  or  rather  to  a  notice  of 
them,  as  neither  our  limits  nor  the  object  of  this  work  will 
admit  of  their  being  examined  at  length. 

1st.  (<i)  Justices  of  the  Peace  are  authorised  to  issue  all 
ordinary  original  writs  in  civil  causes,  both  in  law  and  equi- 
ty, and  warrants  in  criminal  cases.  Writs  in  civil  ac- 
tions are  either  a  summons  or  an  attachment,  having  the  offi- 
cial signature  of  a  Justice.  The  latter  cannot  be  granted 
without  the  plaintiff  or  some  other  person  enters  into  a  re- 
cognizance before  the  authority  issuing  the  same,  condition- 
ed that  he  prosecute  his  action  to  effect.  A  certificate  or  re- 
cord ofsuch  recognizance  must  be  made  on  the  writ.  If  in 
the  opinion  of  the  Justice  the  plaintiff  is  unable  to  pay  the 
bill  of  cost  that  may  be  recovered  against  him,  it  is  his  du- 
ty to  require  surety  in  such  bond  ;  and  in  case  of  a  sum- 
mons, if  the  plaintiff  is  not  an  inhabitant  of  this  state,  ©r  if 
an  inhabitant  of  the  state,  and  it  appears  to  the  authority 
signing  the  writ,  that  he  is  unable  to  pay  the  cost  that  might 
be  recovered  against  him,  some  responsible  person  be- 
ta) St.  p.  34. 


10 

longing  to  this  state  must  recognize  as  surety  to  the  plain- 
tiff for  the  prosecution  of  such  suit,  and  to  answer  all  dama- 
ges in  case  he  make  not  his  plea  good. 

(6)  Writs,  whether  attachment  or  summons,  are  ordina- 
rily to  be  directed  to,  and  served  by,  the  sheriff  or  his 
deputy,  of  the  county  where  the  defendant  resides,  or  a 
constable  of  the  town.  When,  however,  there  are  more 
than  one  defendant  in  the  writ,  who  are  described  to  be  of 
different  counties,  it  may  be  directed  to  an  indifferent  per- 
son by  name  ;  the  process,  whether  a  summons  or  attach- 
ment, must  previously  be  filled  up  and  completed  in  all 
other  respects.  Writs  of  attachment  also  may  be  directed 
to  an  indifferent  person,  when  the  plaintiffs,  or  one  of 
them,  if  there  are  more  than  one,  or  his  or  their  agent  or 
attorney  shall  make  the  following  affidavit :  "  You  solemn- 
ly swear  (or  affirm)  that  you  verily  believe  the  plaintiff 
(or  plaintiffs,  as  the  case  may  be)  is  in  danger  of  losing  the 
debt  (damage,  or  other  thing,  a?  the  case  may  be)  in  this 
writ,  unless  an  indifferent  person  be  deputed  for  the  imme- 
diate service  of  the  same — So  help  yowGoof."  Which  oath 
the  Justice  signing  the  writ  is  to  administer  and  certify  the 
same  literally  on  the  back  thereof.  He  is  entitled  to 
twelve  cents  for  administering  the  oath,  which  is  not  to  be 
taxed  in  the  bill  of  cost.  He  need  not  certify,  as  was  for- 
merly required,  the  reason  of  the  writ's  being  directed  to 
an  indifferent  person. 

(c)  Sheriffs  aie  authorised  to  make  special  deputations, 
which  must  be  entered  on  the  back  of  the  writ,  the  person 

'being  named,  who,  after  having  served  the  process,  must 
make  oath  that  he  served  the  same  according  to  his  en- 
dorsement thereon,  and  that  he  did  not  fill  up  said  writ,  nor 
give  directions  to  any  other  person  to  fill  up  the  same  ; 
and  the  administration  of  said  oath  is  to  be  certified  by  the 
Justice  on  the  back  of  said  writ. 

(d)  Formerly  Justices  could  not  issue  a  writ  to  be  served 
\out  of  the  county  where  they  resided  ;  but  now  they  issue 

process  to  be  served  in  any  part  of  the  State,  and  returna- 
ble before  any  court  within  the  State.  All  writs  returna- 
ble to  the  Superior,  County,  or  City  Courts,  are  subject 

(6)  St.  p,35.       (c)  St.  p.  36.       (<J]  St.  p.  146 


ii 

to  a  duty,  in  the  first  case,  of  one-dollar,  and  in  the  two 
last,  of  thirty-four  cents  ;  the  payment  of  which,  the 
Justice  must  certify  on  the  writ,  and  thereupon  becomes 
chargeable  for  the  same  to  the  State.  Writs  to  the  Superi- 
or or  County  Court,  must  be  made  returnable  to  the  next 
term,  unless  issued  after  the  expiration  of  the  time  of  ser- 
vice ;  but  if  there  is  a  wrong  date,  so  as  to  appear  to  have 
overleaped  a  term,  it  may  be  shewn  by  parol  testimony 
that  there  is  a  mistake  in  the  date,  and  that  the  writ  was 
issued  since  the  last  term  (e). 

Subprenas  for    witnesses  may  in  all  cases  be  directed 
to  an  indifferent  person. 

Issuing  a  writ,  being  a  ministerial  act  only,  it  may  be 
done  in  favour  or  against  the  town  where  the  Justice  re- 
sides, also  against  or  in  favour  of  persons  standing  in  those 
relations  in  which  a  Justice  is  prohibited  by  law  from  acting 
judicially,  and  it  has  been  claimed  that  a  Justice  might  sign 
a  writ  in  his  own  name,  but  this  would  not  be  advisable  nor 
proper.  A  writ  against  a  town,  where  there  is  sufficient 
cause,  may  be  directed  to  an  inhabitant  of  such  town  as  an 
indifferent  person.  (/)  A  writ  directed  to  a  sheriff  or  an  in- 
different person  would  abate  ;  but  to  a  sheriff  or  other  pro- 
per officer  and  an  indifferent  person  is  good. 

Writs  may  also  be  signed  by  the  governor,  lieutenant 
governor,  a  senator,  any  judge  of  the  superior  or  county 
courts,  and  writs  returnable  to  the  superior,  county  or  city 
courts  by  the  clerks  of  those  courts,  respectively. 

2d.  (g)  Justices  are  authorised  to  issue  and  sign  warrants 
in  all  criminal  cases,  to  be  served  and  returned  before  any 
court  in  the  state.  Ordinarily  a  Justice  cannot  issue  a 
warrant,  but  upon  a  complaint  made  to  him  by  an  in- 
forming officer,  or  an  individual  who  has  been  injured, 
or  a  common  informer.  The  informing  officers  are  the  state 
attornies,  the  grand-jurors,  and  constables,  and  tithing-men 
in  particular  cases.  Private  individuals  may  also  in  certain 
cases  make  complaint  to  a  justice  in  their  own  name  and 
that  of  the  state  ;  and  in  one  or  two  instances  an  individual 
may  make  complaint  in  the  name  of  the  state  only,  but 
this  must  be  under  oath. 

(e]  4th  Day,  436.      (/)  2  Swf.  Sys.  108.      (g)  St.  p.  146. 


(/i)  A  Justice  may,  ex  officio,  as  a  peace  officer,  arrest 
without  a  warrant,  all  who  violate  the  peace  in  his  pre- 
sence, and  may  commit  them  to  prison,  if  necessary  to  pre- 
serve the  peace,  (t)  He  may  arrest  not  only  those  who 
break  the  peace  by  actual  violence  of  beating  or  striking 
any  person,  but  such  as  contend  with  hot  and  angry  words, 
tending  to  provoke  actual  violence  in  his  presence  ;  and 
those  who  in  his  presence  threaten  to  kill,  wound,  or  inflict 
some  bodily  injury,  and  likewise  those  who  go  about  arm- 
ed with  dangerous  or  offensive  weapons,  to  the  terror  and 
disquiet  of  the  people.  In  such  cases  a  justice  might  at 
common  law,  ex  qfficio,  grant  a  warrant,  without  complaint 
of  an  informing  officer,  to  cause  the  offender  to  be  ar- 
rested and  brought  before  him,  and  on  inquiry  he  might 
convict  and  pass  sentence  against  him  ;  but  this  power 
seems  now  to  be  taken  away  by  statute  (&). 

3d.  (/)  It  is  made  the  duty  of  Justices  by  statute,  on  their 
own  knowledge,  or  a  verbal  or  written  complaint  of  any 
grand  juror,  constable,  select-man,  or  any  substantial  house- 
holder, to  issue  a  warrant  and  bring  before  him  all  idlers, 
sturdy  beggars,  vagrants  and  vagabonds,  who  roam  about 
from  place  to  place,  and  have  no  lawful  business  nor  visible 
means  of  support  ;  all  night-walkers,  jugglers,  and  fortune- 
tellers ;  all  who  run  away  and  leave  their  wives  and  chil- 
dren to  be  supported  by  the  town  ;  all  who  mispend  what 
they  earn  and  do  not  provide  for  the  support  of  themselves 
and  families  ;  all  lewd  and  dissolute  persons,  who  frequent 
houses  of  ill-fame  ;  all  common  prostitutes  and  common 
drunkards,  and  on  conviction,  to  sentence  them  to  the 
work-house,  not  exceeding  forty  days. 

When  any  Justice  shall  have  plain  view,  or  personal 
knowledge  of  any  person's  being  guilty  of  drunkenness, 
profane  swearing,  or  sabbath  breaking,  he  may,  with  or 
without  warrant,  cause  such  offender  to  be  brought  before 
him,  and  upon  such  evidence  make  up  judgment  against 
him.  This  statute  provides  that  no  judgment  shall  be  ren- 
dered for  any  other  offence,  whether  on  confession  or  oth- 
erwise, without  a  previous  complaint  and  warrant.  This 
provision  was  introduced  at  the  late  revision  ;  it  takes 

(h)  1  Hawk.  P.  C.  25.     (i)  Dal.  Just.  37.      (k)  St.  481-2. 
(1)  St.  p.  172. 


13 

away  the  common  law  authority  of  a  Justice  to  order  a 
person  to  become  bound  to  keep  the  peace  who  breaks  it 
in  his  presence,  or  where  a  person  is  brought  before  him 
by  a  constable  without  warrant,  for  a  breach  of  the  peace 
in  his  presence.  A  Justice  now  has  only  the  authority  to 
interfere  in  case  of  an  affray,  or  other  breach  of  the  peace, 
in  his  presence,  to  arrest  the  offender,  to  order  him  con- 
fined, and  if  necessary  to  preserve  the  peace,  imprisoned, 
until  he  can  safely  be  permitted  to  go  at  large,  but  he  can 
pronounce  no  sentence  or  judgment,  without  a  previous 
complaint  and  warrant.  But  although  this  provision  may 
be  considered  as  having  restricted  the  common  law  author- 
ity of  Justices,  it  cannot  be  regarded  as  taking  away  the 
special  authority  granted  in  particular  statutes,  enacted  at 
the  same  time,  and  of  equal  validity.  It  cannot  be  suppos- 
ed that  the  legislature  intended  by  a  general  restriction  to 
take  away  or  limit  the  authority  specifically  given  in  dif- 
ferent statutes.  The  itatute  relating  to  idlers,  vagabonds, 
4-c.  already  noticed,  is  inconsistent  with  this  general  provi- 
sion, as  that  authorises  and  makes  it  the  duty  of  Justices, 
on  their  own  knowledge,  or  a  verbal  complaint,  and  that 
too  of  a  householder,  to  arrest  such  offenders,  and  pass 
sentence  against  them.  There  are  other  statutes  contain- 
ing similar  provisions. 

4  (A)  When  any  Justice  sees  or  has  knowledge  of  any 
counterfeit  bill  or  bills,  it  is  his  duty  to  seize  and  deface  the 
same,  and  enter  on  the  buck  the  name  of  the  person  of 
whom  he  received  it,  and  to  retain  it ;  and  it  is  the  duty 
of  all  persons  having  counterfeit  bills  to  deliver  them  to 
some  justice  of  the  peace  ;  in  both  of  which  cases  the  jus- 
tice may  at  his  discretion  cause  the  person  from  whom  said 
bill  was  seized  or  delivered,  to  come  before  him,  and  to 
examine  him  on  oath,  respecting  the  person  of  whom  he 
received  such  bill  ;  and  he  may  make  such  other  enquiries 
as  he  may  deem  necessary,  to  discover  the  person  who 
counterfeited,  or  passed  said  bill  knowing  it  to  be  counter- 
feit, and  on  satisfactory  proof,  require  such  person  to  be- 
come bound  with  surety  for  his  appearance  before  the  court 
iiaving  jurisdiction  of  said  crime,  and  for  want  of  bail  com 

(A)  St.  p   134. 
2 


14 

mit  him  as  in  other  cases.  A  person  in  such  cases  ought 
not  to  be  arrested  without  a  warrant ;  but  this  a  justice 
can  evidently  issue,  without  any  previous  complaint  being 
presented  to  him. 

5.  (i)  Two  justices  are  authorised,  on  information  in 
writing,  or  otherwise  of  an  informing  officer,  or  a  majority 
of  the  selectmen,  that  he  or  they  have  cause  to  suspect  that 
any  biliard  table  or  E  O  table,  is  concealed  or  kept  in  any 
building  which  must  be  described,  to  issue  a  warrant  to 
any  proper  officer  or  indifferent  person,  directing  him  to 
search  for,  and  if  found,  to  seize  and  carry  away  such  ta- 
bles,  and  make  return  of  his  doings   to  such  justices.     A 
warrant  in  pursuance  of  this  statute  might  be  issued  without 
being  accompanied  with  any  regular  complaint ;  althongh 
it  would  be  most  safe  and  proper  that  a  written  complaint 
be  made  and  signed,  either  by  an  informing  officer,  or  by 
the  major  part  of  the  select-men. 

6.  In  case  of  sudden,  untimely  or  unnatural  death,  the 
cause  or  manner  of  which  is  unknown,    any  justice  of  the 
peace  of  the  county  may  issue  a  venire  or  writ  to  summon  a 
jury  of  twelve  judicious  men,  who  being  sworn  by  such 
Justice,  shall  proceed  to  inquire  into  the  cause  or  manner 
of  the  death  of  such  person,  and  present  a  true  verdict 
thereof,  signed  by  each  of  them,  to  the  same  or  some  other 
Justice  of  the  Peace  of  the  county,  who  shall  return  the 
same  to  the  next  superior  court  in  the  county.     If  there  is 
no  Justice  in  the  town,  a  constable  may  summon  and  swear 
the  jury  of  inquest  (&). 

Venire,  or  Summons  for  Jurors. 

To  any  Constable  of  the  town  of  in  the  county 

of  Greeting  :     By  authority  of  the  state  of  Con- 

necticut, you  are  hereby  commanded  forthwith  to  summon 
twelve  judicious  and  discrete  men  of  said  town  of 
to  appear  before  me  at  in  said  town  of  on 

the          day  of  at      o'clock,  then  and  there  to  form 

a  Jury  of  inquest,  to  inquire  of  the  cause  and  manner  of  the 
death  of  A.  B.  there  lying  dead,  the  cause  and  manner  of 
whose  death  is  unknown.  Hereof  fail  not,  but  due  return 
make  Dated,  &c. 

(i)  St.  249.         (fr)St.  177. 


Juror's  Oath. 

You  swear  that  you  will  diligently  inquire  of  the  cause 
mid  manner  of  the  death  of  A.  B.  here  lying  dead,  the  cause 
of  whose  death  is  unknown,  and  deliver  up  a  true  verdict 
thereof,  according  to  the  evidence  that  may  be  given  you, 
and  your  best  judgment — So  help  you  God. 

Verdict. 

county  ss.  The  undersigned  jurors  be- 
ing duly  impannelled  and  sworn  to  inquire  of  the  cause  and 
manner  of  the  death  of  A.  B.,  whose  death  was  sudden  and 
untimely,  and  the  cause  aud  manner  of  which  was  unknown, 
having  viewed  the  body  of  said  deceased,  and  considered 
the  evidence  given  to  us,  do  on  our  oaths  say,  that  said  A. 
B.  came  to  his  death  by  accident  and  mischance,  by  falling 
from  a  certain  bridge,  at  a  place  called  in  said  town 
of  (or  do  on  our  oaths  find  and  say  that  the  cause 
and  manner  of  the  death  of  said  deceased  is  to  said  jurors 
unknown)  ;  whereof  we  subscribe  our  names. 

Signed  by  all  the  Jurors. 

The  verdict  may  be  delivered  to  any  justice  of  the  peace 
in  the  county,  who  must  return  the  same  to  the  next  supe- 
rior court.  Any  person  summoned  as  a  juror,  forfeits  two 
dollars  for  not  attending ;  and  neither  the  justice,  jurors, 
or  constable,  are  entitled  to  any  fees  for  their  services. 

7.  (/)  In  all  cases  where  any  person  has  executed  a  bail 
bond,  or  entered  into  a  recognizance  for  the  personal  ap- 
pearance of  another,  before  any  court,  and  such  bail  or 
surety  shall  afterwards  believe  that  his  principal  intends  to 
abscond,  such  bail  or  surety  may  apply  to  any  Justice 
of  the  Peace  in  the  county  in  which  such  principal  resides, 
and  on  producing  his  bail-bond,  or  evidence  of  his  being  bail 
or  surety,  and  verifying  the  reason  of  his  application  by 
oath  or  otherwise,  it  is  the  duty  of  the  Justice  to  grant  a 
mittimus  forthwith,  directed  to  any  proper  officer,  or  an  in- 
different person,  commanding  him  to  arrest  such  princi- 
pal and  commit  him  to  the  keeper  of  the  gaol  of  the  coun- 
ty, and  also  authorise  and  command  said  keeper  to  receive 

(I)  St.  63. 


such  person  and  him  detain  in  gaol,  until  he  is  discharged  by 
due  course  of  law.  The  bail  may,  without  any  warrant  or 
mittimus,  arrest  his  principal,  to  surrender  him  in  court 
where  he  was  bound  to  appear,  or  to  deliver  him  to  the 
officer  who  has  the  execution  issued  on  the  judgment  re- 
covered in  the  action  in  which  the  bail  was  given  (?n).  On 
application  to  a  Justice,  he  ought  to  require  the  bail  bond 
to  be  produced,  or  some  other  evidence  of  the  person  ap- 
plying being  bail,  and  that  he  make  oath  as  to  the  reason  or 
cause  of  his  applying  for  a  mittimus  :  which  facts  should  be 
recited  therein. 

8.  Justices  have  power,  and  it  is  their  duty  to  issue  war- 
rants to  collect  all  taxes  which  may  be  lawfully  granted  by 
towns,  societies,  or  other  communities.  It  is  the  duty  of  the 
select-men  of  towns,  and  the  committee  of  societies  or  oth- 
er communities,  to  make  out  the  rate  bills  for  all  taxes  un- 
der their  hands,  containing  the  proportion  each  individual 
is  to  pay  according  to  his  list,  and  then  to  apply  to  a  Jus- 
tice of  the  Peace  for  a  warrant,  who  is  bound  to  grant  the 
same,  which  should  be  directed  to  the  collector  or  collect- 
ors of  such  tax. 


CHAPTER  II. 
Of  the  ministerial  powers  and  duties  of  Justices  of  the  Peace. 

1st.  Justices  are  conservators  of  the  Peace  throughout  the 
county,  and  may,  ex  officio,  arrest,  and  if  necessary  confine  any 
person  who  violates  the  peace  in  his  presence,  and  at  common 
law  might  order  such  offender  to  procure  bonds  to  keep  the 
peace,  and  for  his  good  behaviour,  without  complaint  or 
warrant,  but  this  authority  is  now  taken  away  by  statute. 
As  a  peace  officer,  it  is  made  the  duty  of  Justices  to  suppress 
riots  (n).  If  three  or  more  persons  shall  come  together 
with  an  intention  to  do  an  unlawful  act  with  force  or  vio- 
lence against  the  peace,  or  to  the  manifest  terror  of  the 
people,  any  Justice  of  the  county,  the  sheriff  or  any  of  his 

(TO)  Swf.  Dig.  597.  (n)  St.  384 


17 

deputies,  or  any  constable  or  select-man  of  the  town  is  au- 
thorised and  required  on  notice  or  knowledge  of  any  such 
unlawful  and  riotous  assembly,  to  resort  to  the  place,  and 
among,  or  as  near  as  he  can  safely  come  to  such  rioters, 
with  an  audible  voice  cnmmand  silence,  or  cause  it  to  be 
done,  whilst  proclamation  is  making  ;  and  thereupon  make, 
or  cause  to  be  made,  proclamation,  in  these  words,  or 
words  to  the  like  effect  :  "  In  the  name  and  by  author- 
ity of  the  state  of  Connecticut,  I  charge  and  command  all 
persons  assembled,  immediately  to  disperse  themselves, 
and  peaceably  to  depart  to  their  habitations,  or  to  their 
lawful  business,  upon  the  pains  and  penalties  of  the  law." 
And  if  such  persons,  or  any  three  or  more  of  them,  after 
proclamation  has  been  made,  shall  not  disperse,  any  Jus- 
tice ofthe  Peace,  the  sheriff,  or  any  of  his  deputies  of  the 
county,  and  any  select  man,  or  constable  of  the  town,  is 
authorised  and  empowered  to  call  assistance  and  apprehend 
such  person  or  persons  continuing  together  after  proclama- 
tion has  been  made  as  aforesaid,  and  forthwith  to  carry 
them  before  some  Justice  of  the  Peace,  that  they  may  be 
proceeded  against  according  to  law.  And  if  any  person  so 
unlawfully  and  riotously  assembled,  shall  be  killed,  or 
maimed,  or  hurt,  in  the  dispersing  or  apprehending  or 
endeavouring  to  disperse,  or  apprehend  him  or  (hem, 
such  Justice  or  other  officer,  and  all  persons  aiding  or  as- 
sisting them,  shall  be  discharged  and  indemnified,  as  well 
against  the  public,  as  the  person  injured. 

2.  Justices  of  the  Peace  are  authorised  to  administer 
oaths,  not  only  in  judicial  proceedings,  but  in  all  cases 
where  they  are  by  law  required,  unless  there  is  an  express 
provision  that  in  particular  cases  they  be  administered  by 
certain  officers.  The  form  of  administering  oaths  in  this 
State  is  extremely  simple.  In  England,  and  in  most  ofthe 
other  states,  it  is  done  by  resting  the  hand  on  the  New  Tes- 
tament, and  then  kissing  the  Book,  (o)  Here  it  is  provi- 
ded by  statute  that  no  other  ceremony  shall  be  used  by 
persons  to  whom  an  oath  is  administered,  than  holding  up 
the  right  hand,  as  has  been  accustomed  ;  but  when  by  rea- 
son of  scruples  of  conscience  any  person  shall  object  to 

(o)  St.  369. 


18 

such  ceremony,  he  shall  be  permitted  to  use  any  proper 
ceremony  to  which  he  has  been  accustomed  in  such  cases, 
or  such  as  the  court  or  authority  by  whom  the  oath  is  to 
be  administered  shall  direct. 

There  seems  to  be  no  express  general  provision  by  stat- 
ute as  to  the  administration  of  oaths  ;  but  they  may  be  ad- 
ministered not  only  by  Justices  of  the  Peace,  but  by  the 
governor  and  the  judges  of  the  superior  and  county  courts. 
It  is  a  power  incident  to  all  courts  to  administer  judicial 
oaths  in  proceedings  before  them  ;  and  the  clerks  of  the 
superior,  county,  and  city  courts,  as  officers  of  such  courts 
possess  the  same  authority.  The  clerk  of  the  senate,  the 
clerks  of  the  house  of  representatives,  and  the  chairman  of 
committees  of  either  house  of  the  general  assembly,  are 
authorised  to  administer  oaths  during  the  session  of  the 
general  assembly  (/>).  This  power  is  undoubtedly  to  be 
confined  to  proceedings  before  the  general  assembly.  Spe- 
cific forme  of  oaths  are  prescribed  for  town  and  other  sub- 
ordinate officers,  and  also  for  judicial  proceedings.  The 
governor,  lieutenant  governor,  members  of  both  houses  of 
the  legislature,  sheriffs  and  judges  of  the  courts,  and  of  pro- 
bate, and  justices,  take  the  oath  prescribed  in  the  constitution 
as  an  oath  of  office.  Where  a  person,  from  scruples  of  con- 
science, declines  to  take  the  witnesses  oath  in  the  usual 
form,  it  may  be  administered  to  him  as  follows  :  "  You, 
A.  B.  do  solemnly  and  sincerely  affirm  and  declare,  that 
the  evidence  you  shall  give  to  this  court,  concerning  the 
case  now  in  question,  shall  be  the  truth,  the  whole  truth, 
and  nothing  but  the  truth,  upon  the  pains  and  penalties  of 
perjury ." 

3d.  The  poor  debtor's  oath,  as  it  is  called,  is  adminis- 
tered to  poor  debtors  in  gaol  on  civil  process  for  debt  only. 
It  has  been  decided  that  this  is  so  far  a  ministerial  act,  that 
it  may  be  administered  by  any  justice  in  the  county,  al- 
though not  residing  in  the  town  in  which  either  of  the  par- 
ties belong  (9).  The  oath  to  be  administered  to  the  debt- 
ors is  as  follows  :  "  You,  A.  B.,  solemnly  swear,  that  you 
have  not  any  estate,  real  or  personal,  in  possession,  rever- 
sion, or  remainder, of  the  value  of  seventeen  dollars  in  the 
whole,  or  sufficient  to  pay  the  debt  or  demand  for  which 

(p)  St.  May  Ses.  1822.        (?)  3  Con.  Rep. 


jou  are  imprisoned,  (except  what  is  by  law  exempt  from 
being  taken  on  execution)  and  that  you  have  not  directly 
or  indirectly  sold  or  otherwise  disposed  of  all  or  any  part 
of  your  estate,  thereby  to  secure  the  same,  to  receive  or 
expect  any  profit  or  advantage  thereof,  or  to  defraud  or  de- 
ceive your  creditors — So  help  you  God."  Notice  must  be 
given  by  citation  to  the  creditor,  or  to  his  attorney  if  he  is 
out  of  the  state,  four  days,  inclusive,  before  the  day  on 
which  the  oath  is  to  be  administered,  to  appear  and  shew 
reasons,  if  any  he  has,  why  the  oath  shall  not  be  adminis- 
tered to  such  debtor.  The  citation  may  be  directed  to 
any  proper  officer,  or  an  indifferent  person,  and  must  be 
served  by  copy  ;  when  served  by  an  indifferent  person, 
he  must  make  affidavit  to  his  endorsement,  before  any  Jus- 
tice of  the  county,  who  must  certify  the  same  on  the  back 
of  the  citation.  It  is  usual  to  notify  the  adverse  party  to 
appear  at  the  gaol  of  the  county  on  a  certain  day  and  hour, 
to  shew  reasons  why  the  oath  shall  not  be  administered, 
without  mentioning  any  Justice  before  whom  to  appear,  as 
it  might  not  be  convenient  to  obtain  the  same.  This  prac- 
tice has  grown  up  from  considerations  of  convenience,  but 
the  statute  evidently  contemplates  that  the  adverse  party 
should  be  notified  to  appear  before  some  particular  Justice, 
to  whom  the  notification  should  be  made  returnable.  It 
would  be  more  correct  that  he  be  cited  to  appear  before 
any  proper  authority.  In  case  the  adverse  party  appear, 
it  is  the  duty  of  the  Justice  who  is  called  on  to  admin- 
ister the  oath,  to  enquire  into  the  matter,  and  if  no  sufficient 
reasons  are  shewn  to  the  contrary,  to  administer  the  oath. 
The  creditor  may  shew  that  the  debtor  is  possessed  of 
property  to  a  greater  amount  than  seventeen  dollars,  or  the 
debt  for  which  he  is  imprisoned,  or  that  he  has  fraudulent- 
ly conveyed  away  property  to  defraud  his  creditors  and 
qualify  himself  to  take  the  oath  ;  in  either  of  which 
cases  it  is  the  duty  of  the  Justice  to  refuse  him  the  oath. 
When  the  oath  is  administered,  the  debtor  is  discharged, 
unless  the  creditor  shall  lodge  with  the  keeper  of  the  gaol 
such  sum  for  the  weekly  maintenance  of  the  debtor  as  the 
county  court  have  established  ;  and  in  case  the  debtor  im- 
mediately adopts  the  legal  steps  to  take  said  oath,  the  cred- 
itor must  also  leave  rnoney  for  the  support  of  such  debtor 


20 

from  the  time  of  his  application  to  the  time  of  administering 
the  oath,  provided  it  does  not  exceed  seven  days,  or  the 
gaoler  will  not  stand  charged  with  the  prisoner.  It  is  the 
duty  of  the  keeper,  when  a  debtor  immediately  applies  for 
the  oath,  to  furnish  such  debtor  with  necessaries,  and  if  the 
creditor  does  not  pay  for  the  support  of  such  debtor  ante- 
cedent to  his  taking  the  oath,  the  keeper  may  recover  the 
same  by  suit  against  such  creditor  ;  and  if  he  is  unable  to 
pay  the  same,  the  gaoler  may  recover  it  of  the  town  to 
which  such  pris6ner  belongs  ;  and  if  he  is  not  an  inhabit- 
ant of  any  town  in  this  state,  then  the  same  shall  be  paid  by 
the  state.  The  prisoner  is  entitled  to  his  weekly  mainten- 
ance of  the  gaoler  in  money  if  he  demands  it. 

If  the  oath  is  refused  by  the  Justice,  the  prisoner  cannot 
make  application  except  to  two  judges  of  the  county  court, 
or  one  judge  and  a  justice  of  the  peace,  who  may  adminis- 
ter or  refuse  said  oath  ;  and  if  the  oath  shall  be  administer- 
ed by  the  Justice  on  the  first  application,  the  creditor  has 
a  right  to  apply  to  two  judges  of  the  county  court,  or  one 
judge  and  ajustice,  to  review  said  cause,  giving  reasonable 
notice  to  the  prisoner,  and  if  on  a  full  hearing,  it  shall  ap- 
pear to  the  satisfaction  of  such  court  that  the  prisoner  is 
not  entitled  to  the  benefit  of  the  poor  debtor's  oath,  it  is 
their  duty  to  order  his  support  to  cease,  and  he  shall  thence- 
forward be  holden  in  prison,  in  the  same  manner  as  though 
said  oath  had  not  been  administered.  It  was  long  consid- 
ered as  doubtful  whether  the  decision  of  a  court  of  review 
was  final  and  conclusive  or  not ;  and  a  practice  has  pre- 
vailed when  the  oath  was  refused  by  such  court,  for  the 
debtor  to  commence  de,  novo,  and  cite  the  creditor  again  to 
appear  before  a  Justice  ;  and  it  has  been  decided  by  the 
superior  court  that  this  might  be  done  (r).  But  in  the  re- 
vision of  the  statutes  there  was  a  provision  added,  that  if 
the  circumstances  of  the  prisoner  subsequent  to  the  refusal 
of  the  oath  by  such  court  of  review,  shall  become  changed, 
so  that  he  may  lawfully  be  entitled  to  take  said  oath,  he 
may  make  application  therefor,  as  in  the  first  instance. 
This  provision  is  confined  to  the  case  where  the  oath  is 
refused  by  the  Justice,  and  his  decision  confirmed  by  the 
court  of  review  ;  but  as  the  reason  is  the  same,  it  is  un- 

(r)  Hart.  Co.  Sept.  term,  1821.  Phelps.  Shff.  vs.  Soper,  et  al. 


21 

doubtedly  equally  applicable  to  the  case  where  the  oath  j«- 
administered  by  the  Justice  on  the  first  application,  and  re- 
fused, and  the  support  of  the  prisoner  ordered  to  cease,  by 
the  court  of  review.  This  provison  may  be  considered  as 
making  the  decision  of  the  court  of  review  final,  except  in 
cases  where  there  is  a  change  in  the  circumstances  of  the 
prisoner  after  the  oath  has  been  refused,  if  the  oath  is 
refused  to  a  debtor  on  the  ground  of  his  possessing  more 
than  seventeen  dollars  in  property,  he  may  subsequently 
assign  his  property  in  payment  of  bona  fide  debts,  and 
thereby  entitle  himself  to  the  oath  ;  but  this  must  be  done  in 
good  faith,  for  if  such  assignment  is  made  even  to  actual 
creditors  only  as  a  cover,  and  the  debtor  intends  to  reclaim 
the  property,  he  cannot  be  entitled  to  the  oath.  If  the  oath 
was  refused  on  the  ground  of  the  debtor's  having  made  a 
fraudulent  conveyance,  it  would  seem  that  the  fraud  might 
be  purged  and  the  fraudulent  debtor  entitled  to  the  benefit 
of  the  oath,  by  his  afterwards  assigning  such  property  in 
good  faith  in  payment  of  bona  fide  debts.  It  has  been  de- 
cided by  the  court  of  errors  that  a  fraudulent  debtor  is  en- 
titled to  the  benefit  of  the  insolvent  act,  after  having  purged 
the  fraud  by  the  assignment  or  transfer  of  the  property 
which  had  been  fraudulently  conveyed  to  his  creditors  in 
payment  of  bona  fide  debts.  The  same  rule  would  be  ap- 
plicable to  a  debtor,  thus  situated,  applying  for  the  poor 
debtor's  oath. 

Form  of  citation  to  Creditor  : 

To  the  sheriff  of  the  county  of  or  his  deputy,  or 

either  of  the  constables  of  the  tovyn  of  within  said 

county, — Greeting — or  if  directed  to  an  indifferent  person. 
To  A.  B.  of  the  town  of  in  the  county  of  an 

indifferent  person, — Greeting — By  authority  of  the  state 
of  Connecticut,  you  are  hereby  commanded  to  summon  or 
give  notice  to  C.  D.  of  in  the  county  of  the 

creditor,  on  an  execution   in  whose  favour  E.  G.  is  now 
confined  in  the  gaol  of  said  county,  to  appear  on  the 
day   of  at  o'clock,          noon,  at  the  common 

gaol  in  in  said  county,  before  A.  B.  Justice  of  the 

Peace  for  said  county,  or  other  proper  authority,  then  and 
there  to  shew  reason  if  any  he  hath,  why  the  oath  provided 


22 

by  law  for  the  relief  of  poor  debtors  in  prison,  shall  not 
be  administered  to  the  said  E.  G.  a  poor  prisoner,  confined 
in  said  gaol  for  debt  only  (as  it  is  said.)  Hereof  fail  not, 
but  make  service  by  leaving  a  true  and  attested  copy  of  this 
citation  with  the  said  C.  D.  or  at  his  usual  place  of  abode, 
and  make  return  according  to  law.  Dated  at  the 

day  of  A.  D. 

A.  B.  Justice  Peace. 

Form  of  certificate  where  the  service  is  made  by  an  indifferent 

person. 

County  of  ss.  day  of  A.  D. 

Personally  appeared  before  me,  C.  D.  and  was  sworn  to 
the  truth  of  the  above  endoisement,  by  him  subscribed 
and  attested. 

A.  B.  Justice  Peace. 

4.  Justices  of  the  Peace  are  authorized  to  take  deposi- 
tions, swear  the  deponents,  make  the  certificate,  and  direct 
them  to  the  court  wherein  they  are  to  be  used,  in  all  cases 
in  which  depositions  are  allowed  by  law.  Depositions  are 
authorized  by  statute,  not  being  evidence  at  common  law. 
(s)  When  any  witness  in  a  civil  cause,  lives  out  of  the  state, 
or  more  than  twenty  miles  from  the  place  of  trial  ;  is  going 
to  sea,  or  out  of  the  state,  or  by  age,  sickness,  or  bodily  in- 
firmity, is  unable  to  travel  to  court,  or  is  confined  in  gaol 
on  legal  process,  his  deposition  may  be  taken.  If  the  ad- 
verse party  lives  within  twenty  miles  of  the  place  of  cap- 
tion, or  he  has  an  agent  or  attorney  within  that  distance, 
notice  must  be  given  to  him  or  to  such  agent  or  attorney,  to 
be  present  at  the  time  and  place  of  taking  such  deposition. 
The  statute  doe?  not  prescribe  any  mode  of  notice  ;  but  it 
is  most  safe  that  it  be  in  writing,  and  delivered  to  the  party 
or  left  at  his  usual  place  of  abode.  A  citation  is  often  issued 
and  served  on  the  party,  and  returned  before  the  magis- 
trate ;  which  affords  him  the  best  evidence  that  notice  has 
been  given  ;  no  time  of  notice  is  required,  but  it  should  be 
reasonable.  Depositions  may  be  taken  in  any  other  state 
or  country  by  a  magistrate  having  power  by  the  laws  thereof 
to  administer  oaths.  Where,  depositions  may  be  taken,  a 

(*)  St.  47. 


justice  is  authorized  to  issue  a  subpoena  for  the  appearance 
of  the  witness  before  him,  to  give  his  deposition  ;  and  if  he 
refused  to  appear,  the  subpoena  having  been  served  and 
returned,  the  justice  may  issue  a  capias,  and  cause  him  to 
be  brought  before  him  ;  and  if  he  shall  refuse  to  give  his 
deposition,  and  in  any  case  if  a  witness  shall  refuse  to  de- 
pose, the  justice  may  commit  him  to  prison  until  he  shall 
comply.  Neither  the  party,  his  attorney,  or  any  person 
interested,  can  write,  draw  up  or  dictate  a  deposition  ;  and 
they  should  regularly  be  written  by  the  witness  or  the  ma- 
gistrate. The  deposition  must  be  signed  by  the  witness, 
and  the  justice  should  caution  him  to  speak  the  whole  truth 
before  he  administers  to  him  the  oath.  The  justice  must 
certify  that  he  administered  the  oath  to  the  witness,  the 
reason  of  taking  the  deposition,  that  the  adverse  party,  or 
his  agent,  if  either  live  within  twenty  miles,  was  notified 
and  present,  or  notified  and  not  present,  (as  the  case  may 
be,)  or  that  he  lives  more  than  twenty  miles,  and  was  not 
notified  or  present.  He  must  seal  it  up  and  direct  it  to  the 
court,  or  he  may  himself  return  it  to  the  court  unsealed  ; 
but  if  delivered  open  by  any  other  person,  it  will  be  rejec- 
ted. A  justice  cannot  take  a  deposition  except  in  the  coun- 
ty in  which  he  belongs,  nor  in  any  other  case  administer 
an  oath  out  of  his  county.  A  justice  may  take  depositions 
here  to  be  used  in  any  other  state  where  they  are  allowed. 

Form  of  certificate. 

County  of  ss.  day  of  A.  D.         Be  it 

remembered  that  on  the  day  aforesaid,,  C.  D.  who  hath  sub- 
scribed the  foregoing  deposition,  appeared  before  me,  and 
after  being  examined  and  cautioned  to  speak  the  whole 
truth,  made  solemn  oath  to  the  same  deposition  ;  which  is 
taken  at  the  request  of  J.  S.  to  be  used  in  an  action  now- 
pending  before  the  court  to  be  holden  at  within 
and  for  the  county  of  on  the  Tuesday  of 
(or  now  in  session  at  within  and  for  the  county  of 
as  the  case  may  be)  wherein  the  said  J.  S.  is  plain- 
tiff, (or  defendant  as  the  case  may  be,)  and  G.  H.  is  defen- 
dant, (or  plaintiff.)  The  reason  of  taking  said  deposition 
is,  that  the  said  deponent  resides  more  than  twenty  miles 
from  the  place  of  trial ;  (or  is  going  to  sea,  or  out  of  the 
state,  or  from  sickness  is  unable  to  travel  to  court,  as  tke 


.M 

case  may  6e)  the  adverse  party  was  notified  and  present,  or 
living  more  than  twenty  miles  from  the  place  of  caption, 
and  having  no  known  agent  or  attorney  within  that  distance, 
was  not  notified  or  present.  Said  deposition  drawn  up  and 
certified  by  A.  B.  Justice  Peace. 

DIRECTION. 

To  the  honourable  court,  to  be  holden  at 

within  and  for  the  county  of  on  the  Tuesday 

of  A.  D.  The  deposition  of  C.  D.,  taken,  seal- 

ed up,  and  directed  at  in  the  county  of  this 

day  of  A.  D.  by  me. 

A.  B.  Justice  Peace. 

If  the  deposition  is  to  be  used  before  a  Justice,  vary  the 
direction  as  follows  :  To  A.  B.  Esquire,  Justice  of  the 
Peace,  for  the  county  of  The  deposition  of,  &c.  The 

subpoena,  when  it  is  necessary  to  issue  one  for  the  appear- 
ance of  the  witness  is  in  common  form,  summoning  him  to 
appear  at  a  specified  time  and  place,  before  a  justice,  then 
and  there  to  testify  his  knowledge  in  a  certain  cause  pend- 
ing before  a  certain  court,  the  cause  and  court  being  des- 
cribed. 

CAPIAS  when  the  -witness  refuses  to  obey  the  subpoena. 

To  the  sheriff  of  the  county   of  his  deputy,  or 

either  constable  of  the  town  of  within  said  county, — 

Greeting  : — Whereas  C.  D.  of  in  said  county,  hav- 

ing been  summoned  to  appear  before  me  at  my  office  in 
on  the  day  of  A.  D.  at  the  hour 

of  then  and  there  to  testify  his  knowledge  in  a  cer- 

tain action  pending  before  (describe  the  court  and 
cause)  and  has  neglected  and  refused  to  appear.  Where- 
fore, by  authority  of  the  state  of  Connecticut,  you  are 
hereby  commanded  to  take  the  said  C.  D.  if  he  shall  be 
found  within  your  precincts  and  him  cause  to  be  safely  kept, 
so  that  you  him  have  forthwith,  (or  at  a  certain  day  and 
hour)  before  me  at  my  office  in  then  and  there  to 

testify  his  knowledge  in  the  cause  aforesaid.  Hereof  you 
are  not  to  fail,  but  have  you  there  this  writ,  and  how  you 
shall  have  served  the  same,  make  known  by  your  endorse- 
ment thereon.  Dated  &c. 

A.  B.  Justice  Peace. 


Mittimus  in  case  he  refuses  to  testify. 
To  the  sheriff,  &c,— Greeting  : — Whereas  C.  D.  of 
in  the  county  of  having  been  brought  before  me  by  a 

Capias  to  testify  his  knowledge  in  a  certain  cause  (describe 
the  cause  and  the  court  before  which  it  is  ponding)  and  the 
said  C.  D.  wilfully  and  contemptuously  refuses  to  U^ufy 
and  depose  what  he  knows  concerning  said  cause  :  \\ 
fore — By  authority  of  the  state  of  Connecticut,  you  are 
hereby  commanded  to  take  the  said  C.  D.  and  him  commit 
into  the  custody  of  the  keeper  of  the  gaol  of  said  cou,-.;y, 
and  to  leave  with  said  keeper  this  mittimus  ;  and  said  keep- 
er is  hereby  commanded  to  receive  the  said  C.  D.  and 
him  safely  keep  in  the  common  gaol  of  said  county,  until 
he  consent  to  testify  his  knowledge  in  the  aforesaid  cause, 
and  be  discharged  by  due  course  of  law.  Hereof  you  arc 
not  to  fail.  Dated,  &c. 

A.  B.  Justice  Peace. 

5.  Justices  of  the  Peace  are  authorized  to  take  the  ac- 
knowledgment of  deeds,  and  all  other  instruments  which  are- 
required  to  be  acknowledged,  to  give  them  validity.  All 
grants,  deeds  and  mortgages  of  lands  and  buildings  must  be 
acknowledged  by  the  grantor  to  be  his  free  act  and  deed 
before,  a  justice  of  the  peace,  or  any  judge  of  the  superior 
or  county  courts  ;  and  if  executed  out  of  the  state,  the 
acknowledgment  may  be  taken  by  a  judge  of  the  supreme 
or  district  court  of  the  United  States,  a  judge  of  the  su- 
pnu^  or  superior  court,  or  of  the  court  of  common  pleas, 
or  county  court  ;  before  a  commissioner  or  other  officer 
having  power  by  the  laws  of  such  state  to  take  acknow- 
ledgment of  deeds  (<.) 

All  leases  of  lands  or  houses  for  more  than  one  year 
mnst  be  acknowledged,  witnessed  and  recorded,  the  same  as 

When  a  deed  is  executed  by  an  attorney,  it  must  be  ac- 
knowledged by  him  ;  but  it  should  be  executed  and  acknow- 
1<'<1_  M'  in  the  name  of  the  principal  :  the  power  of  attorney 
mast  ;ilso  be  acknowledged.  No  sale  or  lease  for  a  longer 
term  than  one  year  of  any  pew  in  any  meeting  house  or 

(0  St.  302. 
3 


church  shall  be  effectual  in  law,  except  against  the  grantor 
or  leasor  and  their  heirs,  unless  it  is  in  writing,  subscribed, 
witnessed  and  acknowledged  in  the  same  manner  as  deeds 
of  land,  and  recorded  by  the  clerk  of  the  society  in  a  book 
to  be  kept  for  that  purpose.  One  pew,  the  property  of 
any  person  having  a  family,  who  ordinarily  occupy  the 
same,  is  exempt  from  being  taken  by  execution  for  debt  or 
taxes.  When  any  grantor  having  executed  a  deed  shall,  on 
being  required  by  the  grantee,  his  heirs  or  assigns,  refuse 
to  acknowledge  the  same,  the  grantee,  his  heirs  or  assigns 
may  enter  a  caveat,  or  caution,  upon  the  lands  and  houses 
granted  in  such  deed,  with  the  town  clerk  or  register, 
where  they  are  situated,  by  leaving  with  him  a  copy  of  the 
deed,  with  a  claim  of  title  by  virtue  thereof;  which  caution 
shall  secure  the  interest  of  the  grantee,  until  a  legal  trial 
can  be  had  ;  and  an  attested  copy  of  the  judgment  of  the 
court  delivered  to  the  register  shall  be  his  warrant  to  re- 
cord such  deed,  although  the  grantor  refuse  to  acknowledge 
the  same,  and  such  deed  shall  have  the  same  effect  as  if 
acknowledged.  The  party  need  only  leave  the  deed  with 
the  register,  and  a  written  statement  that  he  claims  title  by 
virtue  thereof,  and  intends  to  try  the  validity  of  the  same. 
6.  Where  all  the  persons  interested  in  an  estate  of  a  de- 
ceased person,  being  legally  capable  to  act,  mutually  agree 
on  a  division  of  the  same,  it  must  be  by  writing,  signed, 
sealed,  witnessed  and  acknowledged  before  a  justice  or 
the  judge  of  Probate,  and  when  returned  to  said  judge  and 
recorded  it  will  be  effectual  in  law. 


CHAPTER  III. 

Of  the  ministerial  powers  *nd  duties  of  Justices  of  th»  Peace. 

1.  Justices  of  the  Peace  are  authorised  to  join  persons  in 
marriage  ;  but  this  must  be  done  within  their  county. 
Marriage  may  also  be  solemnized  by  ordained  ministers,  so 
long  as  they  continue  in  the  work  of  the  ministry,  and  by 
the  j<>  Iges  of  the  superior  and  county  courts.  No  form  of 
raveuant  or  contract  is  required,  and  every  denomination 


27 

oi  Christians,  and  almost  every  individual  who  officiates 
pursues  a  form  of  his  own. 

If  any  Justice  of  the  Peace  or  other  person  authorized, 
shall  join  persons  in  marriage,  before  the  intention  of  the 
parties  has  been  published  in  some  public  meeting  or  con- 
gregation on  the  Lord's-day,  or  some  public  fast,  thanks- 
giving or  lecture-day  in  the  parish  or  society  where  the 
parties,  or  either  of  them  ordinarily  reside,  or  by  setting 
up  such  intention  or  purpose  in  fair  writing  upon  some  post 
or  door  of  their  meeting-house,  or  near  the  same,  in  pub- 
lic view,  there  to  stand  so  that  it  may  be  read  for  eight 
days  before  such  marriage,  they  shall  forfeit  and  pay  the 
sum  of  sixty-seven  dollars  for  every  such  offence  : — one 
moiety  10  him  who  shall  complain  and  prosecute,  and  the 
other  to  the  Treasury  of  the  county  where  the  offence  is 
committed.  And  where  such  publication  has  been  made, 
if  the  parties  or  either  of  them  are  minors,  the  justice  or 
minister  forfeits  the  same  sum  for  joining  them  in  marriage, 
without  previously  being  certified  of  the  consent  of  their 
parents  or  guardians,  if  any  they  have,  whose  care  and  con- 
troul  they  are  under.  If  any  person  shall  deface  or  take 
down  any  notice  in  writing  set  up  as  aforesaid  before  the 
expiration  of  eight  days,  he  shall  be  fined  three  dollars. 

It  is  the  duty  of  every  person  who  celebrates  the  mar- 
riage contract,  within  thirty  days  after,  to  lodge  a  certifi- 
cate of  the  same  with  the  clerk  of  the  town  in  which  such 
marriage  is  performed,  and  to  pay  such  clerk  twelve  and  a 
half  cents  for  recording  the  same,  which  it  is  his  duty  to  do, 
in  a  book  to  be  kept  for  that  purpose,  and  for  every  neg- 
lect to  lodge  such  certificate,  he  forfeits  the  sum  of  fifteen 
dollars  to  the  treasury  of  the  town  wherein  such  marriage 
was  performed  (M). 

2.  When  any  person  under  an  overseer  does  not  sub- 
mit to  his  authority,  two  or  more  Justices  of  the  same  town, 
on  application  of  the  select-men,  may  issue  a  warrant  to 
bring  him  before  them,  or  grant  a  summons  or  other  writ- 
ten notice,  for  him  to  appear  at  a  certain  time  and  place,  or 
if  he  abscond,  leave  such  notice  at  his  usual  place  of  abode. 
On  his  appearing,  or  without,  after  notice,  and  refusal,  said 

(w)  St.  316. 


Justices  may  inquire  into  the  matter,  and  if  they  find  such 
person  refuses  to  submit  to  the  authority  of  his  overseer, 
or  that  by  his  misconduct  he  is  wasting  his  estate,  and  like- 
ly to  be  reduced  to  want,  they  may  authorize  the  overseer 
or  any  other  person  they  may  appoint,  to  take  such  person, 
his  family  and  estate  under  their  care.  The  power  and 
duty  of  a  person  thus  appointed  will  be  the  same  or  simi- 
lar to  that  of  a  conservator  appointed  by  the  county  court. 
An  overseer  thus  appointed,  may  for  misconduct  be  remov- 
ed by  the  select-men  and  two  justices  of  the  town,  and 
•.mother  appointed  ;  so  also  in  the  case  of  his  death  ;  and 
in  case  of  vacancy  of  an  overseer,  the  disability  of  the  per- 
son is  to  continue  nine  days,  to  give  the  select-men  time  to 
appoint  another.  If  such  person  reforms,  said  Justices 
may  revoke  the  appointment  of  the  overseer,  and  order 
his  estate  restored  to  him.  An  appeal  lies  from  the  doings 
of  the  select-men,  or  the  two  Justices,  to  the  next  county 
court  (t»>).  The  two  Justices  must  record  the  appoint- 
ment of  an  overseer  and  all  their  doings. 

3.  The  children  of  those  persons  who  receive  reliefer 
supplies  from  the  town,  and  who  suffer  their  children  to 
live  in  idleness  ;  and  also  those  children  who  have  no  pa- 
rents, or  others  to  take  care  of  them,  and  are  exposed  to 
want  and  distress,  and  who  live  in  idleness,  the  select-men, 
with  the  consent  of  one  Justice  of  the  Peace,  are  empow- 
ered to  bind  out  to  proper  masters,  to  be  instructed  in  some 
trade,  calling,  or  profession  ;  males  until  the  age  of  twenty- 
one,  and  females  until  that  of  eighteen,  or  the  time  of  their 
marriage  within  that  age  (x). 

4.  If  any  apprentice,  bound  by  indenture,  shall  refuse 
to  serve  as  an  apprentice,  according  to  the  terms  ot  the  in- 
denture,  or  shall  disobey  the  lawful  commands,  or  resist 
the  authority  of  his  master,  or  shall  waste  or  destroy  his 
property,  or  be  guilty  of  any  gross  misbehaviour  and  wil- 
ful neglect  of  duty,  on   complaint  of  the  master  to  any  two 
Justices  of  the  Peace  of  the  same  town,  the  said  Justices 
may   issue   a  warrant  and   cause    such  apprentice    to  be 
brought  before  them,  and  inquire  into  the  truth  of  the  com- 
plaint, and  if  they  find  such  apprentice  guilty,   they  may 

(w)  St.  276,  (,r)  St.  319. 


29 

commit  him  to  the  house  of  correction,  and  if  there  is  none, 
to  the  common  gaol  in  the  county,  there  to  be  confined  at 
hard  labour  for  such  term  of  time  as  they  may  think  pro- 
per, not  exceeding  thirty  days  ;  and  if  he  reform,  said  Jus- 
tices may  release  him  from  prison  before  his  term  expires. 
Said  Justices  are  also  empowered,  if  they  judge  it  best,  to 
discharge  said  master  from  the  contract  of  apprenticeship, 
and  cancel  the  indenture  (^). 

In  case  an  apprentice,  bound  by  an  indenture,  departs 
from  the  service  of  his  master,  any  Justice,  on  complaint 
of  his  master,  may  issue  a  warrant  to^the  sheriff  or  consta- 
ble, commanding  them  to  press  men,  if  necessary,  to  pur- 
sue said  apprentice  and  bring  him  back  by  force,  at  the  re- 
quest and  expense  of  his  master. 

Where  the  master  is  guilty  of  personal  cruelty  or  abuse, 
or  refuses  to  provide  for  him  necessary  food  or  clothing, 
or  neglects  to  instruct  him  in  his  trade  or  business,  or  if  an 
apprentice  shall  flee  from  the  tyranny  of  his  master,  to  the 
house  of  any  inhabitant  in  the  same  town,  on  complaint  of 
the  parent  or  guardian  of  such  apprentice,  or  the  select- 
men, to  any  Justice  of  the  town,  such  Justice  may  cause 
such  master  and  apprentice  to  appear  before  him,  and  re- 
concile them  if  he  can,  and  if  he  cannot,  he  may  at  his  dis- 
cretion bind  the  master  and  the  apprentice  to  the  next 
county  court,  or  give  order  for  the  apprentice's  custody 
in  the  mean  time,  and  for  his  appearance  at  court. 

Complaint  to  two  Justices. 

To  A.  B.  and  C.  D.  Esquires,  Justices  of  the  Peace  for 
the  county  of  and  residing  in  the  town  of 

in  said  county,  comes  O.  P.  an  inhabitant  of  said  t«wn  of 
and  complains  and  informs  said  Justices  of  the  Peace, 
that  he  is  by  profession  and  occupation  a  blacksmith,  and 
carries  on  said  business  in  said  town,  and  that  for  more 
than  one  year  last  past,  Q,  R.  has  been,  and  now  is,  an  in- 
dented apprentice  to  your  complainant,  and  duly  bound  by 
indenture  to  the  complainant  by  S.  T.  his  father,  (or  guar- 
dian) with  the  written  consent  of  said  apprentice,  express- 
ed by  bis  subscribing  said  indenture,  to  learn  the  trade  of  a 

(y)  St.  319. 


30 

blacksmith  ;  and  he  further  informs  that  at  divers  times, 
and  particularly  on  the  day  of  A.  D.  in  the 

town  aforesaid,  the  said  apprentice  did  wilfully  and  con- 
temptuously disobey  the  lawful  commands,  and  resist  the. 
authority  (or,  did  grossly  misbehave  and  wilfully  neglect 
his  duty,  as  the  case  may  be)  of  the  complainant,  to  the 
great  interruption  and  detriment  of  his  business  ;  and  which 
said  doings  of  said  apprentice  are  contrary  to  the  statute  in 
such  case  provided,  and  of  evil  example.  And  the  com- 
plainant prays  that  you  will  issue  a  warrant,  and  cause  said 
apprentice  to  be  brought  before  you,  to  answer  unto  this 
complaint,  and  that  ytm  will  inquire  into  the  truth  of  the 
matters  herein  alledged. 

O.  P. 
Warrant. 

To  the  Sheriff,  &c.         You  are  hereby  commanded 
forthwith  to  arrest  the  aforesaid  Q,  R.  of  the  town  of 
in  the  county  of  apprentice  to  the  aforesaid  O.  P. 

and  him  forthwith  have  (or  at  a  certain  day  and  hour)  be- 
fore us,  the  undersigned,  Justices  of  the  Peace,  at  the  office 
of  A.  B.  in  said  town,  that  he  may  be  examined,  touching 
the  foregoing  complaint,  and  be  dealt  with  according  to 
law.  Hereof  you  are  not  to  fail,  &c. 

A.  B.  Justice  Peace. 
C.  D.  Justice  Peace. 

Record. 

county,  ss.     H  day  of  A.  D. 

Be  it  remembered,  that  on  this  day,  Q.  R.  of  was 

brought  before  us  by  virtue  of  a  warrant  by  us  issued,  on 
the  complaint  of  O.  P.  of  representing  that  the  said 

Q,.  R.  being  an  indented  apprentice  to  the  complainant, 
bound  to  him  by  indenture,  by  his  father,  and  with  his  own 
written  consent  expressed  in  said  indenture,  at  divers 
times,  and  particularly  on  the  day  of  A.  D. 

at  said  did  wilfully  disobey  the  lawful  commands, 

and  resist  the  authority  of  the  complainant,  to  the  injury 
and  detriment  of  his  business,  and  contrary  to  the  statute  in 
such  case  provided;  and  having  appointed  L.  M.  guardi- 
an, to  defend  the  said  Q.  R.,  he  being  required  to  an% 
swer  to  said  complaint,°says  he  i«  not  guilty,  whereupon  we 
proceeded  to  inquire  into  said  matters,  and  having  fully 


31 

considered  the  evidence,  do  find  that  said  Q,.  K.  is  guilty  in 
manner  and  form  complained  of,  by  the  said  O.  F.  and  there- 
upon it  is  considered  by  us,  that  the  said  Q.  R.  be  confined 
in  the  common  gaol  of  said  county,  as  a  house  of  correction, 
there  being  no  house  of  correction  in  said  town  of 
to  be  kept  at  hard  labour,  for  a  period  of  time  not  exceed- 
ing twenty  days,  and  that  in  case  he  reform  before  that 
time,  he  be  released  by  our  order. 

A.  B.  Justice  Peace. 

C.  D.  Justice. Peace. 

Mittimus. 
To  the  Sheriff,  &c. — Greeting. 

Whereas  Q.  R.  of  was  on  the  day  of 

A.  D.  found  guilty  before  as  of  disobeying  the  lawful 

commands,  and  resisting  the  authority  of  O.  P.  his  master, 
the  said  Q.  R.  being  an  indented  apprentice  to  the  said  O. 
P.  and  by  us  sentenced  to  confinement  in  the  common  gaol 
of  sa»d  county,  as  a  house  of  correction,  and  there  to  be 
kept  at  hard  labour,  a  period  of  time  not  exceeding  twenty 
days,  and  to  be  discharged  on  his  reformation,  before  that 
time,  by  our  order.  Wherefore  you  are  hereby  command- 
ed to  take  the  said  Q,  R.  and  him  commit  to  the  keeper  of 
said  gaol,  and  to  leave  with  him  this  mittimus  ;  and  said 
keeper  is  hereby  commanded  to  receive  said  Q,.  R.  and 
him  safely  keep  within  said  gaol  at  hard  labour  during  said 
term  of  twenty  days  from  the  date  hereof,  unless  sooner 
discharged  by  us.  Hereof  you  are  not  to  fail,  £c. 

A.  B.  Justice  Peace. 

C.  D.  Justice  Peace. 

Minor  children,  who  are  stubborn  arid  rebellious,  and  re- 
fuse to  obey  their  parents  or  those  who  have  the  care  of 
them,  may  be  proceeded  with  and  sentenced  in  the  same 
way  as  apprentices,  on  complaint  of  their  parents,  or 
those  who  have  the  charge  of  them,  or  an  informing  officer, 
to  two  Justices  of  the  Peace  of  the  town  where  the  parties 
Jive  (*). 

4..    Two  or  more  Justices  of  any  town,   on  application 

(*)  St.  107. 


of  the  select-men,  may  issue  a  warrant  to  remove  any  per- 
son who  has  become  chargeable  to  such  town,  not  being 
an  inhabitant  thereof,  to  any  other  town  in  this  state  to 
which  such  pauper  may  belong.  Also  in  case  any  inhabit- 
ant of  any  other  state  come  to  reside  in  any  town  in  this 
state,  not  having  a  settlement  in  this  state,  any  two  or  more 
Justices  of  such  town  may,  on  application  of  the  select- 
men, grant  a  warrant  to  convey  such  person  out  of  the 
state,  from  whence  he  came.  We  shall  consider  this  sub- 
ject more  fully  in  treating  of  the  duties  of  select-men  (a). 

Form  of  Warrant. 

To  either  Constable  of  the  town  of  within  the 

county  of  Greeting—    Whereas,  E.  F.,  G.  H., 

and  I.  K.  a  major  part  of  the  select-men  of  said  town  of 
have  made  application  to  the  undersigned  Justices  of  the 
Peace  for  said  county,  and  residents  in  said  town  of 
representing  that  U.  V.  and  his  family,  on  or  about  the 
day  of  A.  D.          removed  into  the  said  town  of 

that  he  has  become  chargeable  to  said  town,  and 
is  a  pauper  ;  that  he  belongs  to,  and  is  an  inhabitant  of  the 
town  of  in  the  county  of  [or  that  he  is 

not  an  inhabitant  of  this  state,  and  came  from  in 

the  state  of  New-York.] 

Wherefore,  Bjr  authority  of  the  state  of  Connecticut, 
and  agreeably  to  the  statute  in  such  case  provided,  you  are 
hereby  required  and  commanded  to  take  the  said  U.  V.  and 
his  family  forthwith,  or  as  soon  as  they  can  safely  be  re- 
moved, and  them  convey  into  said  town  of  where 
they  belong  and  have  a  legal  settlement,  [or  them  convey 
out  of  this  state  into  the  said  state  of  New-York,  whence 
they  came.]  Hereof  you  are  not  to  fail,  &c. 

A.  B.,  Justice  of  the  Peace. 

C.  D.,  Justice  ofthe  Peace. 

E.  F.,  Justice  ofthe  Peace. 

There  are  various  duties  and  powers,  of  a  ministerial  na- 
ture, confered  by  numerous  statutes  upon  Justices  of  the 
Peace,  either  individually,  or  upon  two  or  more,  or  upon 

(n)  St.  281. 


33 

one  or  more  Justices  and  the  select  men,  or  upon  the 
civil  authority,  consisting  of  the  board  of  Justices  of  the 
town,  or  the  civil  authority  and  the  select-men  ;  but  as 
these  services  are  not  of  frequent  occurrence,  or  of  much 
importance  individually  to  magistrates,  and  as  in  general 
they  present  but  little  difficulty,  we  shall  merely  notice 
them;  our  limits  not  admitting  of  more.  Those  cases,  too, 
where  one  or  more  of  the  civil  authority  are  to  act  in  con- 
junction with  the  select-men,  we  may  have  occasion  to  no- 
tice when  considering  the  duties  of  select-men. 

5.  The  civil  authority  and  select-men   of  those  towns 
where  manufacturing  establishments  exist,  are  constituted 
a  board  of  visitors,  and  it  is  their  duty  in  the 'month  of  Jan- 
uary annually,  and  at  such  other  times  as  they  may  think 
proper,  to  visit  such  factories,   and  examine  and   ascertain 
whether  the  requisitions  of  the  statute  relating  to  the  instruc- 
tion and  preservation  of  the  morals  of  the  children  employ- 
ed in  such  factories  have  been  complied  with,  and  if  they 
find  any  neglect,    to  leport  the  same  to  the   next  county 
court.     They  may  delegate  their  power,  and  appoint   a 
committee  of  visitors  if  they  please  (6). 

6.  The   civil  authority  and  select-men   of  the  several 
towns  in  the  state  are  constituted  a  board   of  health,    and 
may  organize  themselves  and  act  as  such   when   occasion 
may   require  ;  appoint  a   president  and  clerk,  and   such 
health  officers  or  health  committees,   as  they  may   deem 
expedient,  and  exercise  all  the  power  and  authority  neces- 
sary for  the  prevention,  or  to  stop  the  diffusion  and  spread 
of  malignant  or  contagious  diseases  (c). 

7.  It  is  the  duty  of  the  civil  authority  on  the  first  Mon- 
day of  January  in  each  year  in  their  respective  towns,  to 
appoint,  or  to  approve  of  proper  persons  to  be  retailers  of 
wines  and  spiritous  liquors,  for  the  year  ensuing.  They 
are  to  appoint  a  clerk  who  must  be  sworn,  and  they  mu«t 
lodge  with  the  clerk  a  list  of  the  persons  approbated,  certi- 
fied by  the  chairman,  designating  the  place  where,  as  well 
as  the  name  or  firm  under  which  such  persons  desire  to  re- 
tail. A  license  will  then  be  issued  to  each  person  or  firm 
in  the  name  of  the  civil  authority,  attested  by  the  clerk. 

(6)  St.  320.  (c)  St.  419. 


A  duty  at  the  rate  of  five  dollars  per  annum  is  to  be  paid 
for  each  licence,  and  twenty  five  eents  to  the  clerk  for  the 
licence  (rf). 

Oath  of  the  Clerk. — "  You,  A.  B.  being  chosen  and  ap" 
pointed  Clerk  of  the  civil  authority  of  the  town  of 
do  swear  that  you  will  truly  and  faithfully  execute  the  office 
to  which  you  are  chosen  and  appointed,  make  true  entries 
of  the  proceedings  of  the  civil  authority  at  any  of  their 
meetings,  account  for,  and  pay  over  all  monies  belonging 
to  this  state  received  by  virtue  of  your  office,  and  perform 
all  other  duties  incident  to  your  appointment  according  to 
your  best  skill. — So  help  you  God." 

Form  of  License. — "  Whereas  the  civil  authority  of  the 
town  of  in  the  county  of  in  the  state  of  Con- 

necticut, reposing  special  confidence  in  the  integrity  and 
faithfulness  of  to  support  the  laws  of  this  state  for  the 

suppression  of  an  improper  use  of  spiritous  liquors,  and 
having  approved  of  the  said  according  to  law  to  be  a 

retailer  of  the  same  :  We  therefore  do  give  license  to  the 
said  to  be  a  retailer  of  wines  and  distilled  spiritous 

liquors,  according  to  the  laws  of  this  state  at  in  said 

town  of  until  the  second  Monday  of  January  next. 

Given  under  my  hand  this  day  of 

Per  order,  C.  D.,  Clerk." 

Special  meetings  of  the  civil  authority  may  be  called  if 
necessary.  The  civil  authority  also  grant  licenses  to  auc- 
tioneers, which  are  necessary  to  enable  them  to  sell  for- 
eign goods  or  produce.  They  are  required  to  pay  a  duty 
of  two  per  c«nt.  on  all  foreign  goods  they  may  sell,  to  the 
clerk  of  the  civil  authority,  and  to  give  a  bond  with  surety 
io  secure  a  compliance  with  the  law  (e). 

8.  The  civil  authority,  select-men,  constables,  and 
grand  jurors  of  the  several  towns  in  the  state,  are  constitu- 
ted an  electoral  body  for  the  appointment  or  nomination  of 
taverners,  which  must  be  done  sometime  in  the  month  of 
January  annually.  They  are  required  to  nominate  by 
their  major  vote  such  person  or  persons  as  they  shall  judge 
fit  and  suitable  to  keep  houses  of  public  entertainment  in 

(d)St.  436.  (c)St.  61. 


such  town  the  ensuing  year,  which  nomination  certified 
under  the  hand  of  a  majority  of  the  civil  authority  and  se- 
lect-men, shall  be  transmitted  to  the  next  county  court, 
which  can  reject  or  approve  such  nominations,  and  grant 
licenses  to  such  as  are  approved.  Each  taverner  must  give 
a  bond  of  seventy  dollars  to  the  treasurer  of  the  county  for 
the  due  observance  of  the  laws  relating  to  houses  of  public 
entertainment  (/). 

It  is  the  duty  of  the  civil  authority  and  select-men  to  in- 
spect the  conduct  of  tavern-keepers  in  their  towns,  and  if 
they  are  satisfied  they  do  not  observe  the  laws  to  admonish 
them  ;  and  if  such  taverner  disregard  such  admonition,  and 
persist  in  his  disobedience  to  the  law,  a  major  part  of  the 
civil  authority  and  select-men  may  revoke  and  set  aside  his 
license  ;  and  on  their  causing  a  copy  of  such  revocation  to 
be  left  with  such  taverner,  and  another  posted  on  the  sign- 
post of  the  town,  his  right  to  keep  a  public  house  ceases, 
and  determines. 

8.  The  civil  authority,  select-men,  grand  jurors  and  con- 
stables of  the  several  towns  on  the  first  Monday  of  January, 
choose  by  ballot,  the  number  of  jurors,  to  which  such 
town  is  entitled,  to  serve  in  the  superior  and  county  courts 
in  the  county  the  ensuing  year.  They  must  be  freehold- 
ers, having  a  freehold  estate  set  in  the  list  at  nine  dollars 
or  more  (^).  Land  under  mortgage  is  not  a  legal  freehold, 
even  if  the  mortgage  debt  has  been  paid,  after  it  became 
forfeited. 

10.  The  civil  authority  and  selectmen  of  any  town  are 
empowered  to  authorize  any  person  to  enter  on  the  land 
of  any  other  person,  within  the  town  at  any  season  of  the 
year,  on  which  barbary  bushes  are  growing,  and  to  dig  up 
and  destroy  the  same,  and  such  person  shall  not  be  liable 
to  an  action  therefor.     The  same  authority  may  be  given 
by  vote  of  the  town  in  legal  town  meeting  (ft). 

11.  The  civil  authority  and  select-men  of  the  respect- 
ive towns,  are  empowered  to  abate  the  one  eighth  part  of 
all  taxes  which  may  be  granted  by  the  General  Assembly, 
and  for  which  the  treasurer  may  issue  his  warrant,  arising 
upon  the  lists  of  the  inhabitants  of  such  town,  and  apply 

(/)  St.  442.        (g)  St.  45.          (h)  St.  91. 


30 

the  same  tor  the  relief  of  the  indigent  or  unfortunate  in  the 
abatement  of  their  particular  rates,  in  whole  or  in  parl,  in 
such  a  manner  as  they  may  judge  most  just  and  reasonable. 
And  which  abatements  the  civil  authority  and  select- 
men must  certify  under  their  hands  to  the  Treasurer  of  the 
State, who  thereupon  must  allow  the  same  to  the  credit  of  the 
collector  of  such  tax.  They  are  authorized  to  make  a  fur- 
ther abatement  of  the  taxes  of  the  poor,  but  all  abatements 
above  one  eighth  must  be  made  up  by  the  town  (z). 


CHAPTER  IV. 

Of  the  Judicial  Powers  and  Duties  of  Justices  of  the  Peace. 

Although  the  office  of  Justice  of  the  Peace  was  origin- 
ally ministerial,  at  the  present  time  their  judicial  powers 
and  duties  are  far  the  most  important.  This  branch  of 
their  authority  and  duties,  is  naturally  divided  into  those 
which  are  of  a  civil  and  those  which  are  of  a  criminal  nature. 
We  propose  first  to  consider  the  civil  branch  of  their  judi- 
cial powers,  and  shall  devote  this  chapter  to  an  examina- 
tion of  their 

CIVIL    JURISDICTION. 

The  general  civil  jurisdiction  of  Justices  of  the  Peac«, 
as  it  respects  the  subject  matter  is  now  fixed  at  thirty-five 
doll'U's.  All  causes  wherein  the  title  of  land  is  not  con- 

i.  and  wherein  the  debt,  trespass,  damage,  or  other 
nr-itter  in  dem  i-id,  does  not  exceed  thirty-five  dollars,  must 
be  beared  and  determined  by  a  Justice  of  the  Peace  ;  pro- 
vi-!-1  !  that  in  all  cases  where  the  sum  demanded  shall  ex- 

-?ven  dollars,  except  in  actions  on  notes  or  bonds 
v  i •••hf.d  bv  two  witnesses  and  given  for  money  only,  an 
a  !  -hill  be  allowed  to  the  next  county  court  (A-). 

I'i'is  of  tresp  is*  quftre  chiusum  fregit  must  be  brought 

'-ounty  where  the  land  lies.  When  in  such  actions, 
lins;  not  more  than  seven  dollars  damages,  the  de- 
fendant shall  justify  by  a  plea  of  title  to  the  land,  a  record 

(i)  St.  453.  (fc)St.  41. 


shall  IK;  made  thereof  and  the  matter  of  fact  shall  be  taken 
to  be  confessed  and  the  defendant  shall  become  bound  to 
the  adverse  party  before  the  justice  with  surety,  in  a  re- 
cognizance in  a  sum  not  exceeding  seventy- dollars,  that  he 
will  prosecute  his  plea  and  enter  his  cause  in  the  next 
countv  court  where  the  land  lies  and  prosecute  the  same  to 
eflect'and  pay  all  damages  and  costs  if  he  fail  to  make  his 
plea  good.  If  he  neglect  to  give  such  bond  his  plea  shall 
be  rejected  and  the  action  proceed.  When  such  bond  is 
given  it  determines  the  jurisdiction  of  the  Justice,  as  a 
Justice  of  the  Peace  has  no  jurisdiction  as  to  the  title  of 
land  in  any  case  where  it  appears  from  the  record  that  the 
title  is  in  issue  ;  but  when  in  an  action  of  trespass  upon 
land  the  defendant  does  not  plead  title,  but  gives  his  title 
in  evidence  under  the  general  issue,  the  Justice  can  pro- 
ceed with  the  case  and  incidentally  try  the  title,  for  if  the 
defendant  wishes  to  take  away  the  jurisdiction  of  the  Jus- 
tice he  must  pie  ul  his  title.  Where  the  defendant  pleads 
his  title  and  enters  into  a  recognizance,  it  is  his  duty  to 
procure  copies  of  the  proceedings  before  the  justice,  cer- 
tified bv  him,  and  have  the  cause  entered  in  the  docket  of 
the  county  court ;  which  must  be  left  with  the  clerk  on  the 
first  or  at  the  opening  of  the  court  on  the  second  day  of  the 
court,  and  if  he  neglect  so  to  do,  he  becomes  liable  on  his 
recognizance,  to  the  plaintiff'  for  all  the  damage  he  has  sus- 
tained. And  if  on  a  trial  before  the  county  court,  he  fail 
to  make  out  .a  title  to  the  land,  paramount  to  that  of  the 
phintiff,  lie  is  liable  to  pay  treble  damages  and  costs  (/). 
He  will  not  be  permitted  before  the  county  court,  to  alter 
his  plea,  but  the  action  must  be  tried  on  the  plea  put  in 
before  the  jdltire. 

In  all  actions  brought  before  a  Justice  of  the  Peace,  de- 
manding not  more  than  seven  dollars  damages,  charging  the 
defendant  with  raising  or  obstructing  the  waters  of  any 
stream,  river,  creek  or  arm  of  the  sea,  by  the  erection  of 
any  mill,  dim,  or  other  obstruction,  in  which  the  defend- 
ant shall  justify  the  same  by  a  special  plea,  stating  or  al- 
leging a  lawful  right  ;  and  in  all  actions  demanding  not 
more  than  seven  dollars  damages,  charging  the  defendant 

(/)  St.  53. 

4 


H 

with  an  injury  done  to  land,  in  which  the  defendant  sliali 
justify  the  same,  stating  or  alleging  a  right  of  way ;  the 
party  who  shall  be  aggrieved  by  the  judgment  of  such  Jus- 
tice of  the  Peace,  shall  be  allowed  to  'appeal  to  the  next 
county  court  in  the  same  county,  on  his  giving  bond  with 
surety  to  prosecute  his  appeal  to  effect. 

A  justice  is  authorized  to  take  the  acknowledgment  of 
a  debt  from  a  debtor  to  his  creditor  for  any  sum  not  ex- 
ceeding seventy  dollars  and  the  costs  of  such  confession. 
The  confession  must  be  made  by  the  debtor  himself,  not 
by  any  other  person  for  him  ;  it  can  only  be  for  the  debt 
and  the  cost  of  the  confession  which  is  twenty-five  cents. 
Before  the  revision,  a  confession  might  be  for  costs  which 
had  previously  accrued  by  suit,  as  well  as  the  costs  of  con- 
fession ;  but  now,  in  such  cases,  a  new  note  must  be  given 
including  such  costs  and  a  confession  taken  thereon.  The 
Justice  must  make  a  record  thereof  and  issue  execution 
as  in  other  cases  (»«.) 

The  civil  jurisdiction  of  justices  as  to  persons  is,  in  a 
qualified  sense,  confined  to  the  town  in  which  they  reside. 
All  actions  betore  a  justice  of  the  peace  must  be  brought 
and  tried  in  the  town  in  which  the  plaintiff  or  defendant 
dwells  ;  but  where  there  is  no  justice  of  the  peace  who 
can  lawfully  try  the  cause  in  either  town,  it  may  be  brought 
before  any  justice  of  the  town  next  adjoining  to  that  where 
the  plaintiff  belongs  (?»).  But  where  neither  of  the  par- 
ties belong  in  this  state,  the  action  must  be  brought  in  the 
town  where  the  defendant  is  at  the  time  the  suit  is  commenc- 
rnenced  ;  or  if  the  service  is  made  by  attaching  the  property 
of  the  defendant,  or  factorising  his  debtor,  the  plaintiff  and 
defendant  neither  being  inhabitants  of  the  st*e,  the  action 
must  be  brought  where  the  property  is  attached  or  the  debtor 
of  the  defendant  resides.  If  a  suit  is  brought  by  a  corporation 
having  no  location,  it  should  be  brought  where  the.  defend- 
ant resides.  If  the  plaintiff  is  not  an  inhabitant  of  this  rtate. 
the  action  should  be  brought  in  the  town  where  the  de- 
fendant is  when  the  writ  is  served  upon  him,  or  if  service 
is  made  by  attaching  property,  the  defendant  not  residing 
in  the  state  at  the  time,  in  the  town  where  the  property 

(m)  St.  146.  (n)  St.  41. 


9* 

is  attached.  Where  the  plaintift'  is  an  inhabitant  01  tins 
state,  and  the  defendant  is  not,  the  action  cannot  be  brought 
where  the  defendant  may  be  found  and  a  writ  served  upon 
him  in  the  state,  but  it  must  be  brought  where  the  plain- 
tiff belongs.  Actions  of  trespass  quare  clausumfregit,  need 
not  be  brought  in  the  town  where  the  land  lies  but  where 
either  of  the  parties  belong,  in  the  same  county.  Where 
there  is  so  near  a  relationship  between  a  judge  or  justice 
of  the  peace,  and  either  of  the  parties  in  any  civil  action, 
as  father  and  son,  by  nature  or  marriage,  brother  and  broth- 
er, uncle  and  nephew,  or  landlord  and  tenant,  such  judge 
or  justice  is  disqualified  to  act.  And  where  he  is  interes- 
ted in  the  suit,  and  may  receive  any  direct  benefit  or  loss 
or  is  liable  for  the  cost,  or  has  engaged  to  pay  the  wholt- 
or  any  part  of  the  expences  of  carrying  on  such  suit,  he  i* 
likewise  disqualified  (o).  An  interest  in  the  question  or 
principle  on  which  the  case  depends,  not  connected  with 
any  interest  in  the  suit,  is  not  a  legal  disqualification  ;  but 
in  such  cases  a  magistrate  from  considerations  of  delicacy 
at  least,  ought  to  excuse  himself.  An  action  in  which  a 
corporation  is  a  party  or  interested,  cannot  be<tried  before 
a  justice  who  is  a  stockholder  or  member,  or  any  other 
way  interested  in  such  corporation. 

Any  justice  of  the  county  may  be  called  on  to  the  coun 
ty  court,  when  it  shall  s"o  happen,  by  reason  of  the  absence 
or  legal  exception  of  any  two  of  the  judges,  that  there 
shall  be.  but  one  judge  present  qualified  to  try  any  cause  pend- 
ing before  such  court.  And  when  all  the  judges  of  the 
county  court  are  disqualified  to  sit  in  any  cause  pending 
before  them  which  is  not  appealable,  the  clerk  shall  draw- 
by  lot  from  the  names  of  all  the  justices  of  the  peace 
qualified  to  act  in  such  cause,  in  the  town  where  the  court 
is  sitting,  the  names  of  three  justices  of  the  peace,  who 
shall  have  power  to  try  said  cause.  And  if  such  town  is 
interested,  three  names  shall  be  drawn  in  like  manner 
from  the  justices  of  an  adjoining  town. 

(o)  St.  148. 


CHAPTER  V. 

Of  proceedings  before  a  Justice  in  eases  of  Default*,  .You 
suits  and  Trials, 

I.  Of  Defaults  and  Won-suits — By  a  late  statute  all  wnU 
returnable  before  a  Justice  of  the  Peace,  are  required  to 
be  returned  twenty-four  hours  at  least,  before  the  day  of 
trial ;  and  those  returnable  to  the  Superior,  County  or 
City  Courts,  forty-eight  hours  before  the  session  of  the 
court  (/>).  It  is  provided  by  a  subsequent  statute  that 
where  writs  have  not  been  returned  forty-eight  hours  be- 
fore the  session,  they  may  be  received  at  the  discretion  of 
the  court,  the  officer's  fees  to  be  disallowed.  This  law 
does  not  extend  to  suits  before  justices,  although  the  rea- 
son is  the  same.  As  the  statute  requiring  writs  to  be  re- 
turned before  a  justice  twenty-four  hours  before  the  day 
of  trial,  does  not  expressly  say  that  where  they  are  not  so 
returned,  the  justice  cannot  proceed  in  the  case,  it  is  the 
most  reasonable  construction  of  the  statute,  that  where  no 
objection  is  made  on  account  of  the  writ's  not  being  re- 
turned in  season,  the  justice  -can  try  the  case,  as  the  de- 
fendant may  waive  the  objection.  In  case  of  defaults  where 
the  defendant  does  not  appear,  if  the  writ  has  not  been  re- 
turned in  season,  the  justice  may  enter  upon  judgment  by 
default,  as  the  defendant  may  be  considered  as  waiving  the 
exception  by  not  appearing. 

(9.)  In  an  action  brought  before  a  justice  wherein  the 
defendant  is  an  inhabitant  of  the  state,  but  out  of  the  state 
when  the  suit  was  commenced  and  does  not  return  before 
the  trial,  such  action  must  be  adjourned  a  reasonable  time, 
not  less  than  one  month,  nor  more  than  nine,  to  give  the 
defendant  an  opportunity  to  return,  or  for  notice  to  be  giv- 
en to  him.  And  where  in  an  action  before  a  justice,  the 
defendant  is  not  an  inhabitant  or  resident  of  this  state,  and 
actual  notice  is  not  given  to  him,  the  action  must  be  ad- 
journed for  a  term  not  less  than  three,  nor  more  than  nine 
months  (r).  If  judgment  is  given  on  default,  without  ar< 

(p)  St.  37.  (?)  St.  39.  (r]  St.  40. 


41 

appearance  by  any  other  person  for  the  defendant,  and 
without  the  cause  being  adjourned,  in  either  of  the  afore- 
said cases,  it  will  be  erroneous  ;  and  on  application  to  the 
county  court  a  new  trial  will  be  granted. 

In  actions  on  joint  securities,  where  all  the  defendants 
are  not  inhabitants  of  this  state,  service  on  those  that  are 
inhabitants  of  this  state,  is  sufficient  to  maintain  the  action 
against  all  the  defendants  ;  and  in  such  cases  it  is  not  ne- 
cessary to  continue  the  suit  on  account  of  some  of  the  de- 
fendants not  being  iiihabitants  of  this  state.  A  justice  of 
the  peace  has  in  no  case  the  power  of  granting  new  trials  ; 
but  in  either  of  the  aforesaid  cases  if  judgment  is  rendered 
against  a  defendant  who  was  out  of  the  state  at  the  service 
of  the  writ,  who  continued  absent  until  after  the  time  of 
trial,  and  who  had  no  actual  notice,  he  may  apply  to  the 
county  court  of  the  same  county,  which,  on  his  making  it  ap- 
pear, that  such  judgment  was  obtaiaed  wrongfully,  and  that 
he  has  a  good  ground  of  defence,  may  grant  him  a  new 
trial,  and  proceed  to  final  judgment  therein.  The  case  is 
not  to  be  returned  to  the  justice  to  be  tried  again  by  him. 
Petition  must  be  brought  to  the  county  court,  within  six 
months  after  such  absent  defendant  returns  or  comes  in- 
to this  state,  and  within  three  years  from  the  rendering  of 
the  judgment  (s).  Where  judgment  was  rendered  against 
an  absent  debtor  after  adjourment  of  the  cause,  formerly  the 
form  of  the  judgment  was  that  execution  issue  on  the  Plain- 
tiff's, giving  bond,  with  surety  in  double  the  amount  of  the 
judgment  to  refund  the  money  in  case  the  judgment 
should  be  set  aside.  But  since  the  revision  of  the  statutes 
this  is  not  necessary.  When  the  defendant  does  not  ap- 
pear, or  if  he  appears  and  does  not  answer  to  the  case 
on  its  being  called,  the  plaintiff  is  entitled  to  judgment 
on  default,  and  it  is  the  duty  of  the  justice  to  enter  up 
judgment  accordingly,  and  issue  execution. 

Form  of  Record  on  Default. 
County  of  ss  day  of  A.  D. 

At  a  court  holden  before  the  undersigned  authority,  at 
the  time  and  place  aforesaid,  John  Brown  against  Peter 

(*)  St.  40. 

4* 


42 

Smith,  action  on  the  case  demanding  thirty-five  dollars 
damages  ;  the  plaintiff  appeared,  but  the  defendant  being 
called  made  default  of  appearance,  whereupon  it  is  consid- 
ered that  the  plaintiff  recover  of  the  defendant  the  sum  of 
damages,  and  his  costs  of  suit,  taxed  and  al- 
lowed at  making  in  the  whole  the  sum  of 
dollars  and  cents  ;  and  that  execution  issue  therefor, 
with  seventeen  cents  more  for  the  same,  and  returnable 
according  to  law. 

Dated  &c.  A.  B.  Justice  of  the  Peace. 

It  is.- not  however,  necessary  to  make  out  a  record  in 
full  ;  it' is  sufficient  to  make  an  entry  or  memorandum  on 
the  file,  that  the  case  was  defaulted  on  such  a  day,  and  to 
enter  the  amount  of  the  damages  and  costs  ;  items  of  the 
costs  being  specified.  Such  an  entry  on  the  file  is  not  a 
record  of  the  judgment ;  but  no  inconvenience  can  arise 
from  the  practice,  as  a  justice  is  authorised  at  any  time 
afterwards  to  fill  up  and  complete  the  record,  not  only 
during  his  continuance  in  office,  but  after  he  is  out  of  office, 
except  he  is  removed  or  left  out  in  consequence  of  some 
crime  of  which  he  has  been  convicted,  by  impeachment 
or  otherwise  (<).  When  a  justice  shall  die  or  removes 
out  of  the  state,  or  is  removed  from  office  on  account  of 
some  crime,  his  files  shall  be  by  himself  or  his  heirs,  ex- 
ecutors, or  administrators,  lodged  in  the  office  of  the  town 
clerk  of  the  town  where  he  last  resided.  And  such  town 
clerk  is  required  to  demand  and  receive  such  files  and  re- 
cords, and  safely  to  keep  the  same  to  give,  when  requir- 
ed, true  copies,  which  shall  be  legal  evidence.  And  if 
such  person  who  has  exercised  the  office  of  justice  of  the 
peace,  and  is  removed  as  aforesaid,  or  the  executor  or  ad- 
ministrator of  a  justice  in  case  of  his  death,  shall  refuse  to 
deliver  to  the  town  clerk  his  files  and  records  within  ten 
days  after  they  are  demanded,  he  shall  forfeit  for  each 
week  he  so  refuses,  the  sum  of  five  dollars,  to  be  recover- 
ed in  an  action  in  the  name  of  the  county  treasurer  («). 

2.  If  on  calling  the  action  the  Plaintiff  does  not  appear, 
and  the  defendant  does,  the  defendant  is  entitled  to  judg- 

(<)  St.  381.  (M)  St.  381. 


nient  on  non-suit.     It  is  usual  to  give  one  hour  of  grace  be- 
fore the  action  is  called. 

Form  of  Judgment. — At  a  court,  &c.  (name  the  partie? 
and  cause  as  in  default,)  the  defendant  appeared  and  an- 
swered to  the  action,  but  the  plaintiff  being  three  times 
publicly  called,  did  not  answer  or  appear  ;  whereupon  it 
is  considered  that  the  defendant  recover  of  the  plaintiff  his 
costs,  taxed  and  allowed  at  and  that  execution  issue 

therefor,  with  seventeen  cents  more  for  the  same,  and  re- 
turnable according  to  law. 

A.  B.  Justice  of  the  Peace. 


CHAPTER  VI. 
//.   Of  Proceedings  in  Trials. 

When  the  parties  appear  before  a  Justice  for  trial,  vari- 
ous motions  and  interlocutory  questions  may  arise.  If  the 
writ  has  not  been  returned  in  season,  an  exception  may  be 
taken,  either  on  motion  or  by  plea  in  abatement. 

Of  Special  Bail. 

1.  Where  the  body  of  the  defendant  has  been  attached, 
the  plaintiff  is  entitled  to  special  bail.  When  it  is  required 
by  the  plaintiff,  no  defendant,  whose  person  has  been  at- 
tached, and  let  to  bail,  shall  be  admitted  to  plead  or  defend 
in  such  action  until  he  hath  in  court  given  special  bail,  with 
sufficient  sureties  for  his  abiding  final  judgment  in  the  cause. 
If  the  defendant  was  attached  and  imprisoned,  and  so  re- 
mained at  the  time  of  trial,  he  cannot  be  required  to  give 
bail  (a).  Special  bail  is  to  be  ordered  on  motion  ;  where 
the  defendant  is  taken  by  surprise,  it  is  proper  to  give  him 
reasonable  time  to  procure  bail,  and  it  may  sometimes  be 
necessary  to  adjourn  the  cause  for  that  purpose.  The  lia- 
bility of  special,  is  the  same  as  common  bail,  or  the  bail  on 
the  attachment  ;  he  is  liable  to  satisfy  thejudgment  in  case 
of  the  avoidance  of  the  principal  and  return  of  non  est  in- 

(n)  Stat.  62. 


44 

ventus — that  the  principal  cannot  be  found — on  the  execu- 
tion. When  bail  is  taken  on  mesne  process  or  attachment, 
the  bail  or  surety  may  at  any  time  during  the  trial,  before 
entering  up  final  judgment,  surrender  the  principal  up  in 
court,  and  move  to  be  discharged.  He  must  thereupon,  if 
he  wishes  it,  move  to  have  him  taken  into  custody,  which 
the  court  will  order  and  grant  a  mittimus  to  commit  him  to 
the  keeper  of  the  gaol,  that  his  body  may  be  taken  on  the 
execution.  If  the  plaintiff  does  not  move  to  have  him  taken 
into  custody,  he  will  be  discharged  (6).  He  is  to  be  kept 
in  custody  live  days  after  final  judgment ;  when  if  execu- 
tion is  not  levied  on  him,  he  may  be  discharged  (c). 

Form  of  J^Iittimus, 

To  the  Sheriff,  &c.     Whereas  A.  B.  of  was  at- 

tached by  C.  D.,  deputy  to  the  sheriff  of  by  a  writ 

of  attachment  in  favour  ofE.  F.  of  against  the  said 

A.  B.,  demandingthe  sum  of  damages  issued  by  G.  H., 

Justice  of  the  Peace,  returnable  before  me  this  day  ;  and 
the  said  A.  B.  having  been  let  to  bail,  and  his  said  bail  or 
surety  having  brought  him  into  court  and  surrendered  him 
during  the  trial,  and  before  entering  up  final  judgment,  and 
moved  to  be  discharged  :  Wherefore,  you  are  hereby 
commanded  to  take  the  said  A.  B.,  &c. 

If  a  defendant  does  not  obtain  bail  in  the  first  instance, 
but  is  committed  to  gaol,  and  is  bailed  whilst  confined,  as  he 
may  legally  be  by  the  sheriff  having  the  charge  of  the  gaol, 
the  plaintiff  has  the  same  right  to  special  bail,  as  though  he 
had  been  let  to  bail  at  first.  Where  the  plaintiff  is  entitled 
to  special  bail,  he  must  move  for  it  before  tbe  defendant  has 
been  permitted  to  plead  in  the  case  ;  for  after  a  plea  has 
been  received  it  is  too  late,  and  as  the  law  requiring  spe- 
cial bail  has  an  apparent  rigour  in  it,  the  plaintiff  ought  to 
be  held  to  the  strict  rule,  and  his  motion  rejected,  unless 
made  in  season.  Where  special  bail  is  ordered,  and  the 
defendant  neglects,  refuses,  or  is  unable  to  give  bond  with 
surety,  if  he  will  not  agree  to  suffer  a  default,  judgment 
must  be  given  against  him  on  nihil  dicit — the  defendant's 

(&)  St.  63.  (c}  Swf.  Dig.  596. 


refusing  to  plead  or  answer,  for  if  he  neglects  or  refut-e.- 
to  comply  with  the  legal  orders  of  the  court,  where' 
plea  can  be  received,  he  is  considered  as  refusing  to  plead 
or  answer  in  the  case  ;  whereupon  judgment  may  be  enter- 
ed up  against  him  on  the  ground  of  such  neglect  or  refu- 
sal. 

Form  of  Judgment. 

At  a  court,  &c.  (same  as  in  default,)  the  action  being 
called,  the  parties  appeared,  and  the  defendant  bavin;:;  been 
attached  on  the  mcsne  process  and  let  to  hail,  the  plaintiff 
moved  for  special  bail,  which  was  ordered  by  the  co'irt, 
but  the  defendant  neglected  and  refused  to  give  special  bail, 
agreeably  to  the  order  of  the  court,  and  so  the  defendant 
neglected  and  refused  to  answer,  plead,  or  defend  in  s -iid 
cause  ;  whereupon  it  is  considered  that  the  plaintiff  is 
entitled  to  judgment  against  the  defendant,  and  that  he  re- 
cover of  him  the  sum  of  damages,  £.c. 
Of  Bonds  for  Prosecution. 

2.  Where  a  bond  was  not  given  at  the  praying  out  of 
the  writ,  or  where  the  bond  taken  is  insufficient,  the  Jus- 
tice, on  motion  of  the  defendant,  and  on  satisfactory  proof 
that  the  plaintiff  or  his  surety  is  not  able  to  satisfy  the  bill 
of  cost  that  may  be  recovered  in  the  suit,  must  order  the 
plaintiff  to  give  a  bond  with  surety  to  prosecute  his  action 
to  effect,  and  pay  all  d  images  in  case  he  fail  in  his  suit  (</). 
If  the  plaintiff  neglect  or  refuse  to  give  bond  with  sufficient 
surety,  he  must  be  non-suited,  and  the  defendant  is  enti- 
tled to  recover  his  cost.  The  proof  lies  upon  the  defend- 
ant, who  must  shew  that  the  plaintiff,  and  his  surety  where 
bonds  were  given  at  the  issuing  of  the  writ,  are  not  able  to 
pay  the  bill  of  cost  that  may  be  recovered.  Where  the 
plaintiff  has  no  visible  property  on  which  the  execution 
might  be  levied,  and  where  he  is  without  credit,  bonds 
ought  to  be  ordered  ;  the  mere  want  of  visible  property  on 
which  to  levy,  would  not  justify  ordering  bonds,  where  {he 
plaintiff  possessed  credit,  as  many  persons  of  sound  credit 
do  not  possess  visible  properly.  But  when  from  the  testi- 
mony it  appears  probable  the  defendant  would  not  be  able 
to  collect  his  bill  of  cost,  bonds  should  be  ordered,  as  no 

(d)  St.  40. 


person  should  be  dragged  into  a  court  of  justice  and  com- 
pelled to  defend  himself,  and  having  done  so,  be  unable  to 
recover  the  cost  which  the  law  allows  him,  which  is  much 
less  than  his  actual  expense  in  defending  himself. 

Of  motions  for  Adjournment. 

3.  Motions  for  adjournment  frequently  occur  in  trials 
before  Justices.  They  may  be  made  by  either  party,  and 
at  any  stage  of  the  trial.  Justices  have  power  to  adjourn 
from  time  to  time,  in  all  cases  ;  there  can  be  no  fixed  rules 
upon  this  subject,  but  they  must  exercise  a  sound  discretion. 
They  ought  not  to  adjourn  for  trivial  causes  ;  the  absence  of 
a  material  witness,  where  there  has  been  no  neglect  of  the 
party  in  obtaining  his  testimony,  is  always  sufficient  cause 
for  postponement.  The  sickness  of  a  party  where  his  pre- 
sence is  necessary,  or  his  personal  attention  in  preparing 
the  case,  the  sickness  or  absence  of  counsel  when  the  par- 
ty is  surprised  by  it,  and  has  not  had  an  opportunity  to  em- 
ploy other  counsel,  and  numerous  other  oirounstanees  are 
sufficient  causes  for  postponement  of  a  trial.  When  there 
is  another  suit  pending  before  the  higher  courts,  flpon  the 
same  subject  matter,  or  depending  upon  the  same  principle 
of  law,  between  the  same  parties,  it  is  punVient  cause  for 
delaying  the  trial,  until  such  cause  can  be  decided.  So 
likewise  is  the  pendency  of  a  petition  before  the  superior 
court  for  thebenefit  of  the.  insolvent  law,  a  reason  for  post- 
poning a  cause  until  such  petition  can  be  decided  ;  for  if 
decided  in  favour  of  the  petitioner,  his  body  will  be  libera- 
ted, and  execution  can  issue  only  against  his  goods  and  estate, 
ft  is  usual,  however,  in  such  cases,  for  the  plaintiff  to  take 
execution  against  the  goods  only  ;  and  where  he  consents 
to  do  this,  there  is  no  cause  for  postponement.  A  Justice 
may  adjourn  a  cause,  without  the  appearance  of  either  par- 
ty on  the  day,  by  their  previous  consent  ;  or  he  may  ad- 
journ for  his  own  convenience,  giving  the  parties  notice,  if 
he  conveniently  can.  Justices  also  may  at  their  discretion 
adjourn  a  cause,  when  one  party  only  appears,  where  they 
are  satisfied  the  other  party  has  been  surprised,  or  where 
they  personally  know  of  satisfactory  reasons  why  the  ab- 
sent party  has  not  attended.  In  actions  upon  notes  and  oth- 
er securities,  where  the  plaintiff  has  no  reason  to  expect 
there  is  a  defence,  or  that  the  defendant  will  appear,  it  is 


IT 

not  usual  tor  the  plaintiff  to  attend  at  the  trial,  and  in  such 
cases  it  is  proper  for  the  Justice,  if  the  defendant  appears 
for  trial,  to  adjourn  the  cause,  and  notify  the  plaintiff.  But 
if  the  plaintiff' knew  there  was  a  dispute  about  the  note,  he 
ought  to  attend,  and  could  not  be  thus  indulged.  In  actions 
fin  torts,  and  in  all  cases  where  from  the  nature  of  the  suit 
it  might  be  expected  to  be  a  dispute,  it  is  as  much  the  duty 
of  the  plaintiff  to  attend  at  the  time  of  trial,  as  that  of  the 
defendant.  Actions  of  book  debt,  are  of  an  equivocal  na- 
ture, being  for  a  debt,  yet  one  which  may  not  be  liquidated  ; 
but  as  the  attendance  of  the  plaintiff  may  be  necessary  to 
substantiate  his  account,  and  as  the  defendant  may  also 
have  an  account  against  the  plaintiff,  it  is  in  general,  the  du- 
ty of  the  plaintiff  to  attend  himself,  or  by  some  other  per- 
>on.  Where,  however,  there  are  no  mutual  accounts  be- 
tween the  parties,  and  the  plaintiff's  account  is  liquidated, 
or  the  amount  known  to  the  defendant,  actions  on  book 
stand  on  much  the  same  ground  as  those  on  note.  —As  there 
i*  no  regular  sessions  of  justice  courts,  a  liberal  practice 
ought  to  be  adopted  as  to  adjournments,  to  accommodate 
the  parties  and  others  concerned. 

Of  'motions  for  Amendment. 

4.  Motions  for  amendment  frequently  occur  in  trials 
before  Justices.  The  plaintiff  may  amend  any  defect,  mis- 
take, or  informality  in  the  writ  or  declaration,  at  any  time 
during  the  trial ;  provided  such  amendment  shall  not 
change  the  form  or  ground  of  action  ;  and  both  parties  may 
amend  any  mistake,  defect  or  informality  in  the  pleadings 
or  other  part  of  the  record  or  proceedings.  Either  party 
may  change  his  plea,  replication  or  rejoinder,  when  he 
thinks  he  has  missed  the  ground  of  his  plea,  and  plead  anew. 
But  in  all  cases  of  amendment  or  pleading  anew,  the  other 
party  is  entitled  to  reasonable  notice  to  answer  the  same  ; 
and  where  the  amendment  is  material,  varying  the  nature 
of  the  claim  or  of  the  defence,  it  is  sufficient  cause  of  ad- 
journment ;  and  in  all  such  cases,  too,  it  is  discretionary 
with  the  court  to  allow  cost  against  the  party  making  the 
amendment  (e).  When  the  amendment  is  merely  verbal. 
or  some  informality,  and  does  not  essentially  affect  the 

(«)  St.  44. 


48 

claim  or  the  defence,  costs  ought  not  to  be  allowed  ;  but 
where  it  occasions  a  delay  or  inconvenience  to  the  other 
party,  costs  should  be  allowed  ;  and  particularly  in  all  ca- 
-es  where  it  occasions  an  adjournment,  unless  it  is  waved. 

Of  motion j or  Oyer. 

5.  In  actions  where  a  note  is  declared  upon,  as  the  gist 
or  ground  of  the  action,  and  a  profert  made  thereof,  (which 
is  necessary  to  be  done,)  that  is,  an  averment,  that  the 
plaintiff  is  ready  to  produce  such  writing  in  court,  the  de- 
fendant is  entitled  to  over  of  such  writing.  Oyer,  is  having 
the  writing  read  to  him,  but  the  practice  is  to  deliver  him 
a  copy  of  the  note  or  writing,  which  he  is  entitled  to  on 
motion.  In  actions  of  book  debt,  the  pi  tintiff  makes  a  pro- 
fert of  his  book,  and  must  give  the  defendant  a  copy  of  his 
account,  or  the  original,  on  motion.  As  the  defendant  also 
may  have  an  account  against  the  plnintiff.  and  as  the  courts 
governed  by  the  common  law.  refused  over  of  the  defend- 
ant's account,  a  statute  was  made  requiring  it  to  be  given, 
~o  that  the  plaintiff  is  as  much  entitled  to  oyer  of  the  de- 
fendant's account  now,  as  the  plaintiff  is  of  his.  In  actions 
on  bond,  it  is  necessary  for  the  defendant  to  have  oyer  of 
tiie  bond,  to  see  if  there  is  not  a  condition  annexed  to  it,  and 
to  plead  it  if  there  is. 

Of  Pleas  in  Abatement. 

6.  Pleas  in  abatement  are  often  made  before  Justices  ; 
as  they  do  not  relate  to  the  merits  of  the  cause,  and  are 
sometimes  merely  for  vexation  and  delay,  they  ought  not 
to  be  encouraged.  The  defendant,  however,  has  a  right  to 
offer  such  a  plea,  and  when  he  does,  it  must  be  received 
and  regularly  disposed  of.  The  plaintiff  should  be  requir- 
ed to  answer  the  plea  as  in  other  cases,  that  there  may  be  a 
regularissue  closed  ;  this  maybe  either  an  issue  in  fact,  or 
an  issue  in  law.  If  the  matters  set  up  in  abatement  are 
traversed  or  denied,  it  is  an  issue  in  fact  ;  if  demurred  to. 
it  is  an  issue  in  law.  In  the  former  case,  the  parties  intro- 
duce testimony  as  to  the  matters  of  fact  put  in  issue,  the 
same  as  on  issue  as  to  the  merits  ;  and  the  Justice  must  de- 
cide whether  the  plea  or  allegations  contained  therein,  are 
true  or  not  ;  when  the  plea  is  demurred  to,  the  facts  are 
admitted  to  be  true,  and  the  Justice  has  to  decide  as  to  the 
operation  of  law  on  these  facts,  or  whether  the  plea,  it  be- 


49 

nig  admitted  to  be  true,  is  sufficient  to  abate  the  action. 
We  do  not  propose  to  go  into  an  examination  of  the  various 
pleas  in  abatement,  as  our  object  is  only  to  state  the  mode 
of  proceeding.  We  will,  however,  mention  some  of  the 
most  common. 

Where  the  plaintiff  is  under  age,  and  does  not  sue 
by  his  parent,  guardian,  or  next  friend,  advantages  may 
be  taken  of  it  in  abatement ;  but  if  a  minor  is  sued,  it  is 
not  cause  of  abatement,  for  the  court  will  appoint  a 
guardian  to  conduct  the  suit  for  him.  This  should  be  done 
by  the  Justice,  and  the  name  of  the  person  so  appointed 
guardian,  entered  on  the  file,  who  should  be  notified  if  not 
present ;  and  such  person  will  plead  and  controul  the  suit 
for  such  minor.  Persons  under  the  care  of  conservators 
and  overseers,  may  sue  in  their  own  names  ;  but  it  is  most 
usual  to  join  the  conservator  or  overseer  ;  and  if  they  are 
not,  they  can  withdraw  the  suit,  as  well  as  though  their 
names  were  on  the  record ;  although  the  defendant  cannot 
plead  in  abatement.  Where  such  persons  are  sued  without 
citing  their  conservators  or  overseers,  it  is  not  cause  of 
abatement,  but  the  court  will  notify  them,  and  continue,  or 
postpone  the  case  if  necessary,  to  enable  them  to  come  in 
and  defend  (/). 

If  a  married  woman  brings  a  suit  in  her  own  name,  with- 
out joining  her  husband,  this  can  be  plead  in  abatement ; 
but  if  she  marry  during  the  pendency  of  the  suit,  the  hus- 
band can  cause  the  marriage  to  be  suggested  or  entered  on 
the  record,  and  the  suit  shall  proceed  in  the  same  manner 
as  though  it  had  been  commenced  after  the  marriage  (g). 
If  a  married  woman  is  sued  as  though  she  was  single,  this 
is  cause  of  abatement,  and  also  if  she  marry  during  the  pen- 
dency of  the  suit. 

Members  of  both  branches  of  the  General  Assembly  are 
by  the  constitution  privileged  from  arrest  on  civil  process, 
during  the  session,  and  fer  four  days  before  and  after  the 
same,  so  that  if  their  bodies  are  attached,  it  is  cause  of 
abatement. 

Misnomer,  or  misdescription  of  either  party,  is  ground  of 
abatement.  Where  the  defendant  is  misnamed  or  misde- 
scribed,  he  can  take  advantage  of  it  by  plea  in  abatement  ; 

(/)  Swf.  Dig.  609.  (g)  St.  42. 

5 


50 

but  he  should  not  plead  as  defendant,  as  this  would  be  ad- 
mitting himself  to  be  the  same  person  ;  but  the  form  should 
be,  "  and,  A.  B.,  on  whom  this  writ  was  served,  pleads  and 
says  that  at  the  time  said  writ  was  served  on  him,  and  for  a 
long  time  previous,  he  was  known  and  called  by  the  name 
of  A.  B.,  which  is  his  true  name,  and  that  he  was  not  at  said 
time  known  and  called  by  the  name  of  mentioned 

in  said  writ,  and  by  which  he  was  sued"  (/i).  If  a  party  is 
described  as  of  the  wrong  town  or  county,  that  is  cause  of 
abatement ;  but  a  mere  mispelling,  either  of  the  name  of  a 
party  or  place,  is  not  fatal,  if  the  words  are  the  same  and 
can  be  rightly  understood.  If  a  person  is  sued  as  execu- 
tor, when  he  is  administrator,  or  an  administrator  is  sued 
as  executor,  this  may  be  taken  advantage  of  in  abatement. 
If  one  of  two  defendants  is  misnamed  or  misdescribed,  or 
the  writ  has  not  been  legally  served  on  him,  he  alone  can 
take  advantage  of  it,  or  he  may  waive  it ;  and  if  the  cause  of 
action  is  joint  and  several,  the  writ  would  abate  only  as  to 
the  person  misnamed,  but  if  joint  only,  it  must  abate  in  to- 
to  (i).  If  a  person  execute  a  note  or  writing  by  a  false 
name,  he  must  be  sued  by  his  true  name,  and  declare  that 
he  executed  such  writing,  by  such  false  name.  This  is 
contrary  to  the  English  practice.  The  want  ofjurisdiction 
is  also  cause  of  abatement,  either  as  to  the  subject  matter, 
or  the  parties  ;  as  where  the  demand  exceeds  thirty-five 
dollars,  or  where  neither  of  the  parties  belong  to  the  town 
where  the  action  i*  brought.  Where  the  action  is  on  a 
note,  or  other  writing  which  affords  evidence  of  the 
amount  of  thn  debt  or  demand,  that  is  the  rule  to  deter- 
mine the  magnitude  of  the  claim  ;  and  where  the  note  or 
other  writing  is  of  greater  amount  than  thirty  five  dollars, 
a  Justice  has  not  jurisdiction,  although  no  more  than  that 
sum  is  demanded  in  damages.  But  where  the  note  is  less 
than  thirty-five  dollars,  if  more  is  demanded,  it  is  bad.  In 
other  cases  where  the  amount  of  the  plaintiff's  claim  does 
not  appear  from  the  cause  of  action  as  set  forth  in  the  de- 
claration, the  amount  demanded  in  damages  is  the  rule  both 
as  it  respects  the  Justice  jurisdiction  and  the  right  of  appeal. 
Where  there  are  more  than  one  plaintiff  or  defendant,  and 
one  of  them  dies  pending  the  suit,  if  the  cause  of  action  sur- 

(h)  Swf.  Dig.  609.  (i)  ib.  60S. 


51 

Vive  for,  or  against,  such  surviving  plaintifl'  or  defendant, 
such  death  may  be  suggested  on  the  record,  and  the  action 
will  not  abate.  And  if  the  defendant,  or  all  of  them  where 
there  is  more  than  one,  in  any  action,  die  pending  the  same, 
if  the  action  might  originally  have  been  prosecuted,  against 
the  executor  or  administrator  of  such  defendant  or  defend- 
ants, it  shall  not  abate,  and  the  plaintiff  shall  have  a  scire- 
facias  against  the  administrator  or  executor  of  such  deceas- 
ed defendant,  to  shew  cause  why  judgment  shall  not  be 
rendered  against  them  (To). 

A  misjoinder  or  non  joinder,  is  cause  of  abatement ;  as 
where  all  the  persons  who  ought  to  have  been  made  plain- 
tiffs, or  all  who  ought  to  have  been  defendants  are  not  join- 
ed. In  joint  contracts,  all  the  contracting  parties  ought  to 
be  joined,  whether  as  plaintiffs  or  defendants  ;  but  those 
which  are  joint  and  several,  all  may  be  joined,  or  a  part  on- 
ly. Trespasses  and  torts  are  joint  and  several,  and  all  or  a 
part  may  be  sued.  Where  persons  who  are  not  inter- 
ested, and  should  not  be  parties,  are  joined,  either  as 
plaintiffs  or  defendants,  it  is  cause  of  abatement.  Where 
it  is  claimed  that  other  persons  should  have  been  made  de- 
fendants, the  plea  must  name  them,  so  as  to  give  the  plain- 
tiff a  better  writ,  as  he  may  not  know  who  they  are  (/). 

A  defect  in  the  writ,  or  service,  is  ground  of  abatement. 
A  mere  defect  in  form,  or  in  an  immaterial  part,  will  not 
abate  a  writ ;  if  it  is  signed  by  proper  authority,  the  court 
and  time  so  described  that  they  can  be  understood,  it  is 
good.  If  a  writ  has  been  filled  up  by  a  sheriff,  his  deputy, 
or  constable,  this  will  abate  it.  A  material  alteration  in  a 
writ  of  attachment  after  it  is  signed,  will  vitiate  it,  except  it 
is  done  by  the  Justice  signing  it,  as  all  attachments  must  be 
filled  up  and  completed  before  they  are  signed,  and  a  ma- 
terial alteration  may  vary  the  liabilities  of  the  person  who 
has  given  bond  (-m).  The  same  rule  by  parity  of  reason, 
applies  to  a  summons,  where,  from  the  plaintiff's  being  not 
an  inhabitant  of  the  state,  or  from  his  poverty,  a  bond  is  re- 
quired and  has  been  given  at  the  issuing  of  the  writ. 

A  defect  in  service  is  cause  of  abatement.  Writs  should 
be  served  in  the  manner  required  by  law.  If  served  by 
copy,  if  the  copy  is  left  at  some  other  place  than  the  defend 

(fc)  St.  42.        (/)  Swf.  Dig.  609.         (m)  Swf.  Dig.  610. 


ant's  abode,  it  will  abate  (n)  ;  so  if  there  is  a  material  va- 
riance from  the  original,  it  will  be  bad  ;  yet  if  the  court, 
the  time  of  trial,  and  the  cause  of  action,  can  be  rightly  un- 
derstood from  the  copy,  it  will  be  good.  The  service  of 
an  attachment  may  be  good  as  a  summons,  although  not  good 
as  an  attachment,  so  as  to  hold  the  property,  as  where  in- 
correct or  no  copies  are  left,  yet  if  the  writ  was  read  to  the 
defendant,  it  i»  sufficient  to  hold  him  to  trial.  In  case  of 
defect  in  a  writ,  which  is  discovered  before  the  time  of 
trial,  it  may  be  altered  and  served  over  again  ;  or  in  case 
of  defective  service,  the  writ  may  be  served  again,  or  a  new 
writ  may  be  obtained  and  served,  and  the  officer  need  not 
return  the  first  (o).  If  an  officer  has  made  a  defect  or  omis- 
sion in  his  endorsement,  the  service  having  been  regularly 
made,  he  may  be  permitted  to  come  into  court  and  amend 
it.  The  return  of  an  officer  is  -prima  facie  evidence  of  the 
facts  stated  in  it,  and  sufficient,  unless  it  is  disproved.  The 
pending  of  another  action,  whether  of  the  same  form  or 
not,  for  the  same  cause  and  matter,  between  the  same  par- 
ties, whether  before  the  same  or  any  other  court,  will  abate 
the  second  suit.  The  rule  to  decide  whether  it  is  the 
same  cause,  is  the  evidence  required  to  support  the  action  ; 
where  the  same  evidence  is  required,  the  cause  of  action 
is  the  same,  although  the  form  may  be  different.  As  to 
form  of  pleas  in  abatement,  they  should  begin  and  end  in 
abatement ;  if  they  end  in  bar,  they  will  be  considered  a? 
pleas  in  bar,  and  final  judgment  given.  Various  distinct 
causes  of  abatement  may  be  included  in  one  plea,  and  it 
will  be  good.  A  plea  in  abatement  cannot  be  received  af- 
ter the  defendant  has  plead  to  the  action.  When  an  issue 
is  formed  on  a  plea  in  abatement,  the  justice  must  find  the 
issue  for  one  party  or  the  other.  If  the  plea  is  denied,  he 
must  decide  either  that  the  facts  contained  in  it  are  true,  or 
that  they  are  not  true  ;  if  the  facts  are  admitted,  and  the  plea 
demurred  to,  he  must  decide  that  the  plea  is  sufficient  or 
insufficient.  If  he  decide  the  issue  in  fact  or  law,  in  favour 
of  the  defendant,  his  judgment  is  that  the  writ  abate  ;  if  in 
favour  of  the  plaintiff,  his  judgment  should  be,  that  the  writ 
do  not  abate,  and  that  the  defendant  answer  over,  or  plead 
to  the  merits  of  the  action.  After  one  plea  in  abatemetr 

(n)  1  Root.  120.  yiFoot,5f.O 


has  been  decided  against  the  defendant,  he  cannot  be  per- 
mitted to  plead  another,  although  it  consist  of  different 
matter.  Where  the  judgment  is  that  the  writ  abate,  the 
plaintiff  may  amend  by  statute,  but  the  cost  must  be  paid, 
as  there  is  no  discretion  with  the  court  in  such  cases.  This, 
however,  can  only  be  done  where  the  defect  is  amendable. 
An  appeal  may  be  taken  by  the  defendant  from  a  judgment, 
on  a  plea  in  abatement,  where  the  action  is  appealable,  and 
if  he  fail  to  make  his  plea  good,  before  the  court  to  which 
he  appeals,  he  shall  pay  cost,  however  the  action  may  final- 
ly issue  (p).  A  writ  of  error  also  lies  on  a  judgment  on  a 
plea  in  abatement,  but  not  until  after  final  judgment  (<?). 
Of  Pleas  to  the  action. 

7.  These  are  the  general  issue,  pleas  in  bar,  a  traverse, 
and  demurrer  ;  which  we  can  barely  notice,  so  as  to  give 
some  general  idea  of  them.  A  demurrer,  as  we  have  sta- 
led, forms  an  issue  in  law.  It  may  be  taken  to  the  declara- 
tion, the  plea  in  bar,  the  replication,  or  any  part  of  the 
pleadings.  If  the  defendant  demurs  to  the  plaintiff's  decla- 
rations, he  admits  the  facts  to  be  as  set  forth,  but  claims 
that  the  law  is  so  that  the  plaintiff  is  not  entitled  to  recov- 
er, notwithstanding.  The  plaintiff  must  join  in  the  demur- 
rer, and  then  the  parties  are  at  issue,  whether  the  law  is 
so  that  the  plaintiff  is  entitled  to  recover  or  not.  When 
the  plaintiff  demurs  to  the  defendant's  plea,  the  question  is 
whether  the  defendant's  plea  is  a  sufficient  answer  to  the 
plaintiff's  declaration  or  not.  There  may  be  a  demurrer 
to  evidence,  which  is,  where  the  party  admits  the  evidence 
to  be  true,  but  denies  its  effect  and  operation  in  law, 
and  wishes  to  raise  the  legal  question  ;  to  carry  the  cause 
to  a  higher  court,  or  for  other  reason. — This  is  seldom  done, 
and  is  mostly  confined  to  written  evidence. 

A  traverse,  is  where  the  defendant  denies  some  material 
iact  or  point  in  the  declaration  or  where  the  plaintiff  de- 
nies all  or  a  part  of  the  facts  in  the  defendant's  plea,  or 
-.vhere  the  defendant  denies  all  or  a  part  of  the  facts  in  the 
plaintiff's  replication  or  reply  to  his  plea.  It  is  only  a  de- 
nial of  some  material  fact  or  allegation  in  the  pleadings,  and 
must  be  of  some  material  point  which  will  make  an  end  of 
the  case. 

(p)  St.  43.  (9)  1  Cay,  28. 

5* 


54 

Pleas  in  bar,  or  as  they  are  usually  called,  special  plea* 
in  bar,  are  where  the  defendant  admits  the  truth  of  the  facts 
set  forth  in  the  declaration,  but  sets  up  certain  other  facts, 
by  which,  he  intends  to  avoid  the  legal  effect  of  the  facts 
in  the  declaration,  and  defeat  the  plaintiff's  right  of  recov- 
ery. 

In  an  action  on  a  note,  the  defendant  may  admit  the  exe- 
cution and  the  promise,  and  plead  that  subsequently  he  had 
paid  the  note  ;  or  an  accord  and  satisfaction,  or  that  he 
was  a  minor  when  he  gave  the  note,  or  any  other  fact  which 
admits  the  execution  of  the  note,  but  shews  that  the  plain- 
tiff is  not  entitled  to  recover. 

But  at  the  present  time,  the  general  issue  is  the  most 
common  plea,  and  it  is  admitted  by  statute  in  various  cases 
where  a  special  plea  was  required  at  common  law.  The 
general  issue  is  a  general  denial  of  ajl  the  material  facts  in 
the  declaration  ;  as  in  an  action  of  trespass,  that  the  defend- 
ant is  not  guilty  ;  in  an  action  of  assumpsit,  or  on  a  prom- 
ise, that  he  did  not  assume  and  promise.  It  is  provided  by- 
statute  that  any  defendant  may  plead  the  general  issue,  in 
any  action,  and  on  the  trial  give  in  evidence  under  such 
plea,  his  title  or  any  special  matter  in  his  defence  and  justi- 
fication, according  to  the  nature  of  the  action  ;  excepting 
only  a  discharge  from  the  plaintiff  or  his  accord  and  satis- 
faction, or  some  special  matter,  whereby  the  defendant,  by 
the  act  of  the  plaintiff',  is  saved  and  acquitted  from  the 
plaintiff's  demand  in  the  declaration  ;  provided  that  at  the 
time  of  making  his  plea,  he  gives  notice  to  the  plaintiff  in 
writing,  of  the  special  matter  which  he  proposes  to  give  in 
evidence  (r).  Such  notice  must  set  out  such  special  mat- 
ter with  nearly  the  same  certainty  and  particularity  as  a 
special  plea.  If  notice  is  not  given,  no  special  matter  can 
be  received  in  evidence  under  a  general  plea,  and  the  par- 
ty will  be  confined  to  the  same  rules  and  restrictions  as  at 
common  law. 

It  is  also  provided  by  Statue  that  the  defendant  may  by 
special  leave  of  court,  plead  as  many  several  matters  bj' 
distinct  pleas,  as  he  may  think  necessary  for  his  defence. 
Leave  to  plead  double  is  granted  of  course  by  the  court 
'»nlese  it  shall  appear  that  the  party  had  no  other  object. 

M  St.  43. 


by  pleading  a  plurality  of  pleas,  than  to  embarrass  the 
trial,  and  confuse  the  record.  When  the  defendant  plead? 
several  pleas  the  plaintiff  must  answer  them  all,  so  that 
several  issues  will  be  formed,  which  may  be  either  issues 
in  law  or  in  fact  or  both.  The  court  must  try  and  decide 
all  the  issues  formed.  And  if  any  issue  is  found  for  the 
plaintiff  the  court  must  allow  the  plaintiff  his  cost,  though 
on  some  other  issue  the  defendant  should  be  entitled  to 
judgment ;  unless  the  court  shall  be  of  opinion  the  defend- 
ant had  probable,  cause,  to  plead  such  matter  as  has  been 
found  against  him  (s).  Unless  it  is  apparent  that  the  de- 
fendant plead  such  matter  without  any  cause  or  for  mere 
vexation  or  to  embarrass  the  trial,  he  ought  not  to  be  sub- 
jected to  pay  a  bill  of  cost,  where  the  action  is  decided  in 
his  favour  on  some  other  issue,  as  this  would  in  a  great  meas- 
ure defeat  the  object  of  the  statue.  In  actions  of  replev- 
in where  the  defendant  makes  avowry,  the  plaintiff  has 
the  same  right  to  plead  double,  in  reply  thereto.  In  ac- 
tions on  bond,  note  or  other  obligation,  with  a  condition 
annexed,  where  the  plaintiff  does  not  set  out  the  condition 
in  his  declaration,  and  where  the  defendant  having  prayed 
oyer  of  such  writing  sets  out  such  condition,  and  pleads 
performance  thereof,  and  the  plaintiff  replies  thereto,  set- 
ting forth  any  breach  or  breaches,  the  defendant  may,  with 
leave  of  court,  rejoin  as  many  several  matters  by  distinct 
rejoinders,  as  he  might  have  pleaded,  had  such  condition 
and  breach  or  breaches,  been  set  forth  in  the  declaration 
(t).  In  an  action  founded  on  a  note,  or  other  obligation 
not  negotiable,  if  the  defendant  plead  or  give  in  evidence, 
a  discharge,  acknowledgement,  payment  or  other  act  of  the 
plaintiff  on  the  record,  the  plaintiff  may  reply  or  give  in 
evidence  as  the  case  may  require,  the  assignment  of  such 
note  or  other  obligation  and  notice  given  of  such  assign- 
ment to  the  defendant ;  and  if  such  payment,  discharge, 
acknowledgment,  or  other  act  of  the  plaintiff  was  after 
such  assignment,  it  will  not  avail  such  defendant  («). 

We  cannot  notice  the  various  matters  which  may  be 
given  in  evidence  under  the  general  issue  in  pursuance  of 
the  statue,  but  there  is  one  matter,  as  it  rests  on  a  recent 
law,  and  may  be  of  frequent  occurrence,  we  will  notice  ; 

'.«)St.  45.  (<)  St.  session  1822.          («)  St.  sess.  182-2. 


50 

we  allude  to  set-offs.  Where  the  plaintiff  lives  out  of  the 
State,  or  is  insolvent,  the  defendant  may  plead  a  set-off, 
of  mutual  debts,  or  give  it  in  evidence,  under  the  general 
issue  on  given  notice.  But  a  debt  claimed  by  assignment 
cannot  be  set  off,  unless  the  plaintiff  had  notice  of  such 
assignment  before  commencement  of  the  suit  (a).  The 
debts  to  be  mutual,  must  be  between  the  same  parties,  so 
that  where  the  debt  declared  on,  is  in  favour  of  two  or 
more  persons  as  partners,  the  defendant  could  not  set  off 
a  debt  against  one  of  such  partners.  The  defendant  must 
state  his  debt  with  the  same  certainty  and  particularity  as 
in  a  declaration  that  the  plaintiff  may  be  able  to  defend 
against  it.  He  must  state  the  amount  of  his  debt,  and  that 
it  exceeds  the  claim  of  the  plaintiff,  to  wit,  in  such  a  sum, 
and  that  he  is  willing  and  offers  to  allow  and  set  off  his 
debt  against  the  plaintiff's  demand  according  to  the  form 
of  the  statue  in  such  case  provided  ;  and  conclude  with  a 
verification.  If  the  defendant's  debt  is  less  than  the  plain- 
tiff's demand,  it  may  be  set  off  in  part ;  if  it  is  more,  he 
may  recover  the  balance  ;  but  if  the  balance  exceeds  thir- 
ty-five dollars  a  justice  cannot  give  judgment  for  the  bal- 
ance ;  but  in  such  cases  he  must  find  the  amount  of  the 
plaintiff's  demand  or  damages,  and  also  find  that  there  is 
a  greater  debt  due  to  the  defendant  which  he  has  offered 
and  is  entitled  to  have  offset,  and  that  he  off-sets  the  same 
to  the  amount  of  the  plaintiff's  demand  and  give  judgment  for 
the  defendant  to  recover  his  cost.  The  defendant  may  then 
bring  an  action  for  the  residue  of  his  debt.  If  the  defend- 
ant demands  a  balance  due  to  him,  and  the  court  find  there 
is  a  balance  in  favour  of  the  plaintiff  they  must  off-set  the 
defendant's  debt  as  far  as  it  goes  and  give  judgment  for  the 
plaintiff  to  recover  the  residue  of  his  claim  (?/).  The  de- 
fendant may  give  in  evidence  several  distinct  debts  if  the.y 
are  mutual  ones  ;  if  some  are  proved  and  others  not,  those 
that  are,  will  be  off-set  ;  or  if  some  are  not  entitled  to  be 
off-set,  they  will  form  no  obstacle  to  the  off-set  of  those 
that  are.  Where  a  debt  or  debts  are  plead  or  given  in 
evidence  as  set  off,  which  are  not  entitled  to  be  set  off,  tho. 
plaintiff  may  demur,  or  traverse,  or  deny  the  plea,  which 

(x)  St.  34.  (y)  Swift's  Dig.  713. 


will  not  preclude  him  from  taking  advantage  of  the  legal 
exception. 

8.  Of  motions  or  objections  as  to  testimony. 

In  trials  before  justices  as  before  other  courts  various-- 
questions arise  as  to  the  admission  or  rejection  of  testimo- 
ny. No  general  rules  can  be  laid  down  upon  this  subject, 
as  all  questions  of  this  sort  depend  upon  the  law  of  evidence, 
which  it  does  not  come  within  the  views  of  this  work  to 
examine.  The  parties  &  all  persons  interested  in  the  cause, 
that  is,  where  they  m;iy  gain  or  lose  by  the  suit,  or  where  the 
judgmentmay  be  evidence,  for  or  against  them  in  any  other 
case,  are  inadmissible,  except  in  particular  cases  where  they 
are  admitted  by  statute  ;  but  an  interest  in  the  question  or 
principle  on  which  the  case  depends  does  not  exclude  a 
witness,  but  affects  his  credit  only.  The  testimony  ought 
to  be  confined  to  the  issue  or  issues  formed  in  the  case  and 
upon  which  the  parties  are  on  trial  ;  so  that  evidence  which 
is  irrelevant  and  has  no  bearing  on  the  issue  is  not  to  be 
received  ;  but  this  rule  must  not  be  confined  to  testimony 
having  a  direct  bearing  on  the  issue,  for  any  fact  or  cir- 
cumstance which  tends  to  prove  any  fact  put  in  issue  is 
proper.  Where  there  is  a  variance  between  a  note  or 
other  writing  declared  upon  and  the  one  offered  in  evidence, 
this  variance  may  be  taken  advantage  of  by  an  objection  to 
its  being  received  as  evidence  on  the  trial  ;  and  if  the  va- 
riance is  material  it  cannot  be  received.  No  fact  can  be 
proved  in  a  court  of  justice  but  by  the  testimony  of  at  least 
one  credible  witness  or  testimony  equivalent  to  it ;  so  that 
where  there  is  but  one  witness  to  a  fact,  without  any  cor- 
roborating circumstances,  who  is  impeached,  the  fact  can- 
not be  considered  as  proved.  In  all  cases  it  belongs  to  the 
party,  whether  plaintiff  or  defendant,  who  takes  the  affirm- 
ative of  an  issue  to  prove  it,  and  if  he  fails  the;  cause 
must  be  decided  against  him,  although  there  is  no  evidence 
on  the  other  side. 

When  testimony  is  objected  to,  the  party  making  the 
objection  first  states  the  grounds  or  reasons  of  his  objec- 
tion, to  which  the  party  offering  it  replies,  and  the  court 
must  then  decide  either  to  reject  or  admit  the  testimony. 
If  the  party  against  whom  the  court  decides  is  dissatisfied, 
he  may  file  his  bill  of  exceptions,  which  consists  of  a  state- 
ment of  the  testimony  offered,  the  purpose  for  which  offer- 


68 

ed,  that  it  was  objected  to,  and  admitted  or  rejected  by  the 
court  as  the  case  is.  This  must  be  signed  by  the  justice 
and  it  then  becomes  a  part  of  the  record  and  lays  the  found- 
ation for  a  writ  of  error.  If  the  parties  cannot  agree  as 
to  the  facts,  or  if  the  bill  presented  is  incorrect,  the  jus- 
tice must  correct  it,  but  when  correct  it  is  his  duty  to  sign 
it,  and  if  he  refuse  he  may  be  compelled  by  a  writ  of  man- 
damus from  the  superior  court.  A  bill  of  exceptions  may 
be  taken  to  any  other  incidental  question,  arising  upon  any 
challenge  or  exception  during  the  trial,  where  the  facts  are 
agreed  or  admitted  and  the  court  decides  a  point  of  law  (z}. 
9.  Of  appointment  of  auditors. 

In  actions  of  account  before  the  higher  courts,  when 
the  judgment  is  for  the  plaintiff  that  the  defendant  do  ac- 
count, auditors  must  be  appointed  to  take  the  account  ; 
but  it  is  provided  by  statute  that  in  actions  of  account  be- 
fore justices  of  the  peace,  the  justice  shall  take  the  ac- 
count, without  the  appointment  of  auditors  and  render 
judgment  accordingly  (a). 

In  actions  of  book  debt  it  is  provided  that  where  the  ac- 
count is  alleged  to  be  more  than  seventeen  dollars,  the 
court  before  which  such  action  is  pending  shall  have  pow- 
er to  appoint  three  or  less  judicious  and  disinterested  men 
to  audit  &  adjust  the  accounts  between  the  parties  ;  who  shall 
have  the  same  power  and  be  sworn  and  proved  in  the  same 
manner  as  auditors  in  the  proper  action  of  account  ;  and  the 
award  being  returned  into  court  judgment  shall  be  render- 
ed in  pursuance  thereof  (ft).  This  statute  applies  to  jus- 
tices, who  are  empowered  when  the  account  is  alleged  to 
be  more  than  seventeen  dollars  to  appoint  auditors.  If 
the  defendant  in  his  plea  alleges  an  account  of  more  than 
seventeen  dollars  auditors  may  be  appointed  ;  where  either 
party  alleges  his  account  to  be  more  than  seventeen  dol- 
lars auditors  may  be  appointed,  although  it  is  in  fact  less 
than  that  sum.  But  it  is  not  necessary  that  auditors  be  ap- 
pointed where  the  amount  exceeds  seventeen  dollars  ; 
where  either  party  moves  for  the  appointment  of  auditor?, 
the  court  is  to  exercise  a  sound  discretion  and  appoint  them 
if  the  case  requires  it.  /  When  the  accounts  of  the  parties 
-iro  of  long  standing,  of  considerable  amount,  or  involved 

':}  Swif.  Dig-.  771.         fa)  St.  34  (b]  St.  94. 


59 

in  intricacy  or  difficulty,  it  would  be  proper  to  appoint  au 
ditors  ;  and  in  most  cases  where  both  parties  request  it. 
When  auditors  are  appointed  they  must  take  the  following 
oath  :  "  You  swear  that  you  will  faithfully  examine  and 
adjust  the  accounts  referred  to  you,  and  award  thereon  ac- 
cording to  your  best  skill  and  judgment — So  help  you  GotZ." 
The  parties  and  other  persons  interested  will  be  permitted 
to  testify  before  the  auditors  the  same  as  before  the  jus- 
tice. They  must  make  and  report  to  the  justice  an  award, 
stating  which  party  they  find  indebted,  and  the  amount  ; 
and  the  justice  must  render  judgment  upon  such  award. 
An  objection  may  be  made  by  way  of  remonstrance,  stating 
the  grounds  of  the  objection  to  the  acceptance  of  the 
award,  and  it  may  be  set  aside  by  the  court,  where  the  au- 
ditors have  decided  against  some  plain  principle  of  law, 
considered  matters  not  submitted  to  them,  committed  a  mis- 
take on  their  own  principles,  or  improperly  admitted  or 
rejected  testimony  (c).  Where  the  award  is  set  aside  new 
auditors  must  be  appointed.  It  will  however  probably 
seldom  be  necessary  to  appoint  auditors  in  trials  before 
justices  of  the  peace. 

Of  judgment. 

The  judgment  must  follow  the  issue.  The  pleadings  in 
all  trials  should  be  regularly  closed,  and  where  the  parties 
are  not  capable  of  doing  it,  the  justice  should  do  it  himself. 
The  issue  must  be  expressly  and  directly  decided  ;  when 
it  is  an  issue  in  law  formed  by  a  demurrer  to  the  declaration, 
the  plea,  the  replication  or  the  rejoinder,  the  court  must 
always  give  their  opinion  as  to  that  part  of  the  pleadings 
to  which  the/lemurrer  is  taken,  and  which  is  put  in  issue  ; 
for  instance,  if  the  demurrer  is  taken  to  the  declaration, 
they  must  decide  that  the  declaration  is  sufficient  or  insuffi- 
cient, as  their  opinion  may  be.  If  the  question  of  law  is 
decided  in  favour  of  the  plaintiff,  they  must,  after  deciding 
that  point,  proceed  to  give  judgment  that  the  plaintiff  recov- 
er such  sum  in  damages  as  they  may  think  reasonable  and 
his  costs.  If  it  be  decided  that  the  declaration  is  insuffi- 
cient, the  judgment  must  be  for  the  defendant  to  recover 
his  costs.  In  entering  up  judgment  on  a  demurrer,  the 
record  will  read  : 

o)  1  Swf.  Dig.  726. 


60 

"  This  court  is  of  opinion -that  the  plaintiff's  declaration 
(or  the  defendant's  plea  as  the  case  may  be)  is  sufficient, 
and  thereupon  it  is  considered  that  the  plaintiff  recover  of 
the  defendant  the  sum  of  dollars  damages  and  his 

costs  taxed  at  dollars,  or  is  of  opinion  that  the  plain- 

tiff's said  declaration,  is  insufficient,  and  thereupon  con- 
sider and  give  judgment  that  the  defendant  recover  of  the 
plaintiff  his  costs  taxed  at  dollars." 

Where  an  issue  in  fact  is  joined,  the  facts  put  in  issue 
must  be  expressly  found  to  be  true  or  not  true,  and  judg- 
ment given  accordingly.  In  cases  of  the  general  issue,  of 
owe  nothing,  not  guilty,  did  not  assume  and  promise,  the 
court  may  say,  this  court  does  find  that  the  defendant  owes 
or  does  not  owe,  did  or  did  not  assume  and  promise,  or  is 
not  guilty  in  manner  and  form,  the  plaintiff  in  his  declara- 
tion has  alleged,  and  thereupon  it  is  considered  that  the 
plaintiff  recover  of  the  defendant  the  sum  of  dollars 

damages,  and  costs  taxed  at  ,  or  if  the  issue  be  found 

for  the  defendant  ;  and  thereupon  it  is  considered  that  he 
recover  of  the  plaintiff  his  costs  taxed  at  .  If  there 

be  special  pleadings  and  a  traverse  or  denial  of  some  par- 
ticular fact,  either  in  the  declaration,  the  plea,  replication 
or  rejoinder,  the  court  must  find  true,  or  not  true,  every  fact 
put  in  issue,  and  give  judgment  according  to  their  finding 
of  the  facts  (rf).  Where  there  are  several  issues  joined, 
in  consequence  of  the  defendant's  pleading  several  pleas 
in  pursuance  of  the  statute,  or  in  other  cases,  whether 
they  are  all  issues  in  fact,  or  issues  in  fact  and  issues  in  law, 
the  court  must  decide  all  the  issues  joined,  and  give  judg- 
ment accordingly  to  their  find.  If  any  one  issue  is  found 
for  the  defendant  he  is  entitled  to  judgment.  Where 
there  are  several  issues  joined  between  the  parties,  if  the 
court  finds  one  issue,  and  proceeds  to  give  judgment  ac- 
cordingly, without  taking  any  notice  of  the  other  issues 
the  judgment  will  be  erroneous  :  so  too  where  the  court 
renders  judgment  generally  for  one  pnrty  or  the  other, 
without  finding  any  issue.  In  every  trial  there  must  be 
one  or  more  issues  formed  between  the  parties,  which  the 
court  must  expressly  decide  and  give  judgment  accordingly. 
The  decision  of  the  issue  is  the  principal  thing,  and  tho 

'<!)  I  Swf.  Dig.  8.4. 


01 

judgment  is  founded  upon  that,  and  is  a  consequence  of  it 
[n  all  cases  therefore,  where  it  does  not  appear  from  the 
record  that  all  the  issues  joined,  have  been  decided,  the 
judgment  will  be  erroneous  ;  likewise  where  the  judgment 
entered  up,  is  not  consistent  with  the  finding  of  the  issue  or 
issues,  as  when  there  is  one  or  more  issues  found  for  the 
plaintiff,  and  one  found  for  the  defendant,  and  judgment  giv- 
en for  the  plaintiff.  The  superior  court  are  more  indul- 
gent and  less  critical  with  respect  to  judgments  of  justices 
of  the  peace,  now  than  formerly,  and  will  not  set  them 
aside  for  any  informality  ;  but  where  it  does  not  appeal- 
that  any  issue  has  been  joined,  or  what  the  issue  is,  or  how 
it  has  been  found,  or  whether  it  has  been  found  at  all  or  not  ; 
where  all  the  issues  have  not  been  decided,  or  where 
judgment  has  not  been  rendered  according  to  the  finding  ot 
the  iasue  ;  in  these  cases  the  judgment  will  be  reversed, 

Of  appeals. 

Where  the  sum  demanded  by  the  plaintiff  shall  exceed 
seven  dollars,  except  in  action  on  notes  or  bonds,  vouched 
by  two  witnesses  and  given  for  money  only,  either  party 
may  appeal  from  the  decision  of  a  justice  of  the  peace  to 
the  next  county  court.  In  actions  of  book  debt  where  the 
defendant  demands  more  than  seven  dollars  as  due  to  him 
from  the  plaintiff,  the  party  aggrieved  by  the  judgment,  in 
such  case  shall  have  the  same  right  of  appeal  as  he  would 
have  had  if  the  action  had  been  brought  by  the  plaintiff 
demanding  more  than  seven  dollars.  If  however  the  de- 
fendant in  his  plea  demands  more  than  thirty-five  dollars, 
the  justice  cannot  try  the  cause  ;  but  such  plea  shall  not 
be  received  unless  the  defendant  shall  pay  a  duty  of  thirty- 
four  cents,  and  enter  into  a  recognizance  with  sufficient 
surety  to  the  adverse  party,  to  remove  said  cause  to,  and 
pursue  his  plea  before  the  next  county  court,  and  to  an- 
swei  all  damages  in  case  he  fail  to  make  his  plea  good. 
The  justice  must  take,  and  record  such  recognizance,  and 
also  record  the  payment  of  the  duty  of  thirty-four  cents1. 
If  the  defendant  in  his  plea  demands  more  than  thirty-five 
dollars,  as  a  balance  due  to  him,  but  refuses  to  enter  into 
such  recognizance  or  to  pay  the  duty,  yet  persists  in  his 

lea,  the  justice  must  give  judgment  against  him  on  nikil 

'  rit — his  refusing  to  plead. 
6 


In  actions  demanding  not  more  than  seven  dollars,  charg- 
ing the  defendant  with  obstructing  any  stream,  river,  creek 
or  arm  of  the  sea,  wherein  the  defendant  shall  justify  the 
same  by  a  special  plea  alleging  a  right  ;  and  also  in  actions 
charging  the  defendant  with  an  injury  done  to  land,  where- 
in the  defendant  shall  justify  the  same  by  a  special  plea  al- 
leging a  right  of  way,  although  less  than  seven  dollars  are 
demanded,  an  appeal  is  allowable.  Where  in  an  action  of 
trespass  the  defendant  puts  in  a  plea  of  title  to  the  land, 
he  must  enter  into  a  recognizance  to  the  adverse  party, 
and  the  cause  must  be  removed  to  the  next  county  court. 
If  the  defendant  puts  in  a  plea  of  title  to  the  land,  in  an 
action  of  Irespass,  but  refuses  to  enter  into  a  recogniz- 
ance, the  court  must  give  judgment  against  him  on  nihil 
(licit. 

In  all  eases  which  are  appealable,  either  party  may  ap- 
peal from  the  decision  of  the  justice  as  a  matter  of  right  ; 
there  is  no  discretion  to  be  exercised  on  the  subject.  But 
in  doubtful  cases  the  court  must  decide  whether  the  ac- 
tion is  appealable  or  not.  If  a  justice  refuses  to  allow  an 
appeal  where  a  cause  is  appealable,  the  superior  court  will 
compel  him  to  do  it,  by  a  writ  of  mandamus.  In  all  cases 
where  an  appeal  is  allowed  the  party  appealing  must  give 
bond  with  surety  to  the  adverse  party  to  prosecute  his  ap- 
peal to  effect,  and  pay  all  damages  in  case  he  make  not  his 
plea  good.  He  must  also  in  all  cases  pay  a  duty  of  fifty 
cents  on  his  appeal,  and  if  he  refuse  or  is  unable  to  give 
bond  with  surety,  or  to  pay  the  duty,  the  appeal  must  be 
disallowed  and  the  court  may  issue  execution  and  enforce 
the  judgment.  Where,  in  case  of  a  plea  of  title  to  land, 
or  in  actions  of  book  debt,  the  defendant  in  his  plea  demands 
more  than  thirty-five  dollars,  and  the  action  is  remov- 
ed to  the  county  court,  the  duty  of  fifty  cents  is  not  paya- 
ble as  on  an  appeal  ;  for  in  such  case  there  has  been  no 
trial  before  the  justice,  and  the  proceeding  is  not  an  ap- 
peal, but  a  removal  of  the  action. 

Where  an  action  is  appealed,  the  record  of  the  judgment 
should  be  made  as  in  other  cases,  and  then  add  :  And  the 
plaintiff  or  defendant  (as  the  case  may  be)  appeals  trom 
this  judgment  to  the  next  county  court,  to  be  holden  &c. 
and  paid  me  a  duty  on  his  said  appeal  of  fifty  cents,  and 
the  plaintiff  as  principal  and  A.  B.  as  surety  recognized  to 


03 

Uie  adverse  party,  in  the  sum  of  dollars,  to  prosecute  his 
s^aid  appeal  to  effect,  and  answer  all  damages  in  case  he 
make  not  his  plea  good.  The  recognizance  must  be  en- 
tered in  full,  and  form  a  part  of  the  record.  It  is  the  duty 
of  the  justice  to  furnish  copies  of  the  record  to  the  party 
appealing,  for  which  he  is  entitled  to  receive  twenty-five 
cents  a  page.  When  an  appeal  is  taken  and  the  action  is 
not  appealable,  the  county  court  will  erase  such  cause  from 
their  docket  ;  but  they  cannot  remand  it  to  the  justice  to  be 
proceeded  in  &  finally  disposed  of,  as  the  superior  court  can 
do  where  a  cause  is  appealed  to  that  court  from  the  county 
«;ourt,  which  is  not  appealable.  In  such  case,  a  writ  of 
error  must  be  brought,  and  the  judgment  of  the  justice 
reversed,  as  allowing  the  appeal  is  a  part  of  the  judgment. 
When  the  party  appealing  does  not  procure  copies  and  en- 
ter his  action  in  the  docket  of  the  county  court,  by  the 
second  day  of  the  court,  the  other  party  may  procure  the 
cause  to  be  entered  at  any  time  during  the  term,  and  have 
the  judgment  of  the  justice  affirmed.  But  if  neither  par- 
ty enter  the  cause  during  the  term  to  which  it  is  appealed, 
it  cannot  afterwards  be  entered  ;  but  the  judgment  of  the 
justice  is  dead.  The  surety  on  the  bond  is  holden  for  the 
bifl  of  cost  only,  the  adverse  party  may  recover  and  not  for 
the  damages. 

Of  Execution. 

The  last  thing  is  the  issuing  of  an  execution  to  enforce 
the  judgment.  The  execution  must  agree  with  the  judg- 
ment, and  is  ordinarily  issued  against  the  goods,  lands  and 
body  of  the  debtor  ;  but  where  the  judgment  is  against 
an  executor  or  administrator  for  the  debt  of  the  deceased 
the  execution  should  issue  only  against  the  estate  of  the 
deceased  in  their  hands.  So  when  the  debtor  has  been 
liberated  from  arrest  by  the  superior  court  under  the  in- 
solvent law,  the  execution  should  issue  against  the  goods 
and  estate  of  the  debtor  only;  and  likewise  where  a  judg- 
ment is  rendered  against  a  corporation,  the  execution  should 
be  granted  against  the  goods  and  estate  of  such  corporation 
only  ;  but  when  judgment  is  obtained  against  a  town  or  so- 
ciety, the  law  is,  that  the  execution  issue  against  the  goods 
and  estate  of  the  legal  inhabitants  of  such  town,  or  society, 
and  not  against  the  property  of  such  corporation  ;  and  if 


the  estates  of  individuals  are  taken  and  sold  they  will  have 
a  remedy  against  such  town  or  society. 

Executions  issued  from  the  higher  courts  may  be  made 
returnable  to  the  next  term  of  the  court,  or  in  sixty  days  ; 
but  justices  of  the  peace  must  make  their  executions  re- 
turnable in  sixty  days  from  their  date.  After  the  expira- 
tion of  the  sixty  days,  and  return  of  the  first  execution,  an 
alias  or  second  execution  may  be  issued  if  the  judgment 
has  not  been  satisfied.  When  the  first  execution  has  been 
satisfied  in  part,  the  endorsement  on  the  first  execution 
should  be  copied  on  to  the  second,  and  certified  by  the  jus- 
tice to  be  a  true  copy  of  the  original.  When  an  execution 
has  been  discharged  by  a  mistake,  or  by  a  void  levy,  or 
endorsement  made  through  mistake,  the  justice  rendering 
the  judgment  may  grant  a  new  execution  (e).  Where  the 
execution  is  levied  by  mistake  on  the  goods  of  another 
person  which  are  sold,  and  the  execution  endorsed  satisfi- 
ed, a  new  execution  may  be  granted.  Where  land  be- 
longing to  the  debtor,  as  tenant  in  common  or  joint  tenant, 
is  set  off,  as  though  he  was  sole  owner,  or  where  the  debt- 
or has  only  an  equity  of  redemption  in  land,  and  it  is  set 
off  by  metes  and  bounds,  the  levy  will  be  void,  and  a  new 
execution  may  be  granted.  Where  a  new  execution  is 
granted,  in  consequence  of  a  void  levy,  or  of  the  first's  hav- 
ing been  discharged  or  endorsed  satisfied,  by  a  mistake, 
the  ground  and  reasons  of  granting  the  new  execution, 
ought  to  be  entered  on  the  file  and  form  a  part  of  the  re- 
cord. Where  the  debtor  is  arrested  on  the  execution,  and 
voluntarily  discharged  by  the  officer,  with  or  without  the 
consent  of  the  creditor,  a  new  execution  cannot  be  gran- 
ted, nor  can  the  debtor  be  arrested  again  on  the  same  exe- 
cution ;  and  it  has  recently  been  decided  by  the  court  of  er- 
rors, that  the  judgment  in  the  former  case  is  discharged  ;  and 
•where  the  debtor  is  committed  to  gaol  and  he  is  discharg- 
ed on  the  poor  debtors'  oath,  a  new  execution  cannot  is- 
sue, but  an  action  must  be  brought  on  the  judgment.  So 
if  either  of  the  parties  die,  a  scire  facias,  or  other  action 
must  be  commenced  on  the  judgment,  as  an  execution  ( "'•' 
not  be  issued. 

l«}\  Swf.  Dip.  7% 


It  was  formerly  doubted  whether  executions  issued 
on  the  judgment  of  a  justice  of  the  peace,  could  be  levied 
on  land,  but  it  is  now  provided  that  they  may  in  all  re- 
spects be  executed  in  the  same  manner  as  executions  issu- 
ing on  the  judgments  of  the  higher  courts.  They  must  be 
directed  to  some  proper  officer  to  serve,  and  the  party 
cannot  alter  the  direction.  When  an  execution  is  return- 
ed, it  becomes  a  part  of  the  records  ofthe  case,  and  should 
be  kept  on  file,  and  an  entry  made  of  the  time  of  it.-' being 
returned,  for  if  it  is  not  returned  wtfhin  the  life  of  it,  the 
officer  becomes  liable  to  the  creditor. 


CHAPTER  VII. 

Of  the  powers  of  Justices  of  the  Peace  to  preserve  order,  <$*c. 

It  is  important  to  the  purposes  of  justice,  as  well  as  to 
the  authority  ofthe  laws,  and  to  maintain  respect  even  to- 
wards the  lowest  tribunals  of  justice,  that  order  be  main- 
tained during  trials  before  Justices  ofthe  Peace.  They  are 
clothed  with  the  same  authority  to  preserve  order  as  oth- 
er courts,  although  their  power  is  more  limited  in  degree. 

If  a  witness  refuses  to  be  sworn,  unless  in  case  of  scru- 
ples of  conscience,  or  refuses  to  testify  after  being  sworn, 
he  may  be  committed  for  contempt. 

Form  of  Mittimus. 
To  A.  B.  Sheriff  of,  &c.  Greeting — 

Whereas,  at  a  court  holden  this  day  before  me,  an  action 
wherein  John  Doe  is  plaintiff,  and  Richard  Roe  is  defend- 
ant, being  on  trial,  Peter  Brown  having  been  summoned  b} 
the  said  plaintiff  as  a  witness  in  said  cause,  and  having  ap- 
peared before  said  court,  and  being  required  by  me  to  take 
the  witnesses  oath,  obstinately  and  contemptuously  refused 
so  to  do,  and  has  no  scruples  of  conscience  as  to  taking  said 
oath — or,  (if  he  has  been  sworn  and  refuse?  to  testify,)  and 
having  appeared  before  said  court,  and  been  duly  sworn  to 
testify  therein,  on  being  required  and  demanded,  wilfully 
and  contemptuously  neglects  and  refuses  to  testify  in  said 
cause,  Wherefore,  you  are  hereby  commanded  to  take  .  iir. 


66 

iaid  Peter  Brown,  and  him  commit  to  the  keeper  of  the 
gaol,  in  and  for  the  county  of  who  Is  hereby  re- 

quired to  receive  the  said  Peter  into  his  custody,  and  him 
safely  keep  within  said  gaol,  until  he  shall  consent  to  give 
his  testimony  in  said  cause,  and  be  legally  discharged. — 
Hereof  you  are  not  to  fail,  but  due  service  make,  and  leave 
with  said  keeper  this  mittimus. 

In  criminal  cases,  where  a  witness  has  been  summoned, 
and  refuses  to  appear  or  attend  before  the  justice,  as  well  as- 
where  he  refuses  to  be  sworn  or  to  testify,  he  may  be  ap- 
prehended and  committed  to  gaol,  there  to  remain  at  his 
own  cost,  until  he  shall  give  evidence.  The  mittimus  in 
such  cases  would  be  the  same,  except  that  it  must  be  sta- 
ted that  the  cause  on  trial  was  a  public  prosecution  and  oi 
a  criminal  nature,  and  that  the  witness  having  been  sum- 
moned, wilfully  and  contemptuously  refused  to  appear  be- 
fore said  court,  and  the  officer  must  be  directed  to  appre- 
hend and  arrest  the  person  and  him  commit,  &c.  But  it  is 
most  common  in  such  cases  to  issue  a  capias,  to  bring  the 
witness  before  the  court.  In  civil  cases  too,  where  the 
witness  has  been  summoned  and  received,  or  had  tendered 
to  him  his  fees,  and  refuses  to  attend,  the  Justice  is  empow- 
ered to  issue  a  capias  and  bring  him  before  the  court.  We 
have  given  a  form  of  a  capias  in  treating  of  depositions,  to 
which  we  must  refer. — See  page  24. 

The  power  of  punishing  by  fine  and  imprisonment  for 
contempt,  is  incident  at  common  law,  to  any  court  of  re- 
cord, without  which  they  could  scarcely  exist,  for  every 
tribunal  must  be  able  to  prevent  its  authority,  and  the  au- 
thority of  the  laws,  from  being  trampled  upon,  and  to  pro- 
tect itself  from  insult.  It  is  provided  by  statute,  that  if  any 
person  in  the  presence  of  any  court,  shall  either  by  words 
or  actions  behave  contemptuously  or  disorderly,  it  shall  be 
in  the  power  of  the  court  to  inflict  such  punishment  upon 
him  by  fine  or  imprisonment,  as  shall  be  judged  reasona- 
ble ;  provided,  that  no  single  minister  of  justice  shall  inflict 
a  greater  fine  than  seven  dollars,  or  a  longer  term  of  im- 
prisonment than  one  month,  and  no  other  court  shall  inflict 
a  greater  fine  than  one  hundred  dollars,  nor  a  longer  term 
of  imprisonment  than  six  months  (/).  The  imprisonment 

(/*)St.  174. 


67 

must  be  in  the  common  gaol  of  the  county,  and  the  Justice 
must  issue  a  mittimus  for  the  commitment  of  the  offender. 
The  offence  must  be  committed  in  open  court,  and  if  com- 
mitted immediately  before  or  after  a  trial,  the  case  will 
not  be  within  the  statute.  The  court  may  impose  a  fine 
on  the  offender,  and  commit  him  for  refusing  to  pay  the 
same  ;  or  it  may  sentence  him  to  imprisonment  directly ; 
in  either  case  a  record  must  be  made  of  the  sentence 
or  or4er,  stating  what  the  person  did,  or  that  he  behaved 
contemptuously  or  disorderly  in  open  court : 

"  At  a  court  holden  before  me,  this          day  of 
A.  D.         at  my  office  in  a  cause  then  and  there 

being  on  trial,  wherein  A.  B.  is  plaintiff,  and  C.  D.  is  de- 
fendant, one  J.  S.  of  then  and  there  being  present, 
with  intent  to  disturb  and  interrupt  said  court,  and  to  insult 
the  same,  did  in  open  court,  and  during  said  trial,  behave 
in  a  contemptuous  aod  disorderly  manner  towards  said 
court,  by  talking  loud  and  offensively,  which  he  persisted 
in,  after  being  commanded  to  be  silent ;  whereupon  it  is  con- 
sidered and  ordered  by  me  that  the  said  J.  S.  pay  a  fine  to 
the  treasury  of  the  said  town  of  of  five  dollars, 
and  that  on  failure  thereof,  he  be  committed  ;  or,  it  is  con- 
sidered that  the  said  J.  S.  be  punished  by  imprisonment  in 
the  common  gaol  of  said  county  seven  days  ;  and  having 
issued  a  mittimus,  the  said  J.  S.  was  committed  according- 
ly." 

Form  of  Mittimus. 

To  the  Sheriff,  &.c.  Greeting  :  Whereas,  at  a  court  hold- 
en  this  day  of  A.  D.  before  me,  at  my 
office  in  in  the  county  of  a  cause  then  be- 
ing on  trial,  wherein  A.  B.  is  plaintiff,  and  C.  D.  defend- 
ant, J.  S.  of  was  fined  by  me  for  contemptuous 
and  disorderly  conduct  in  open  court  during  said  trial,  in 
the  sum  of  seven  dollars,  for  the  use  of  the  treasury  of  the 
said  town  of  and  the  said  J.  S.  having  neglected  and 
refused  to  pay  said  fine  ;  (or,  the  said  J.  S.  was  sentenced 
by  me  to  he  punished  by  imprisonment  in  the  common  gaol 
of  said  county  for  the  term  of  seven  days  from  the  date 
hereof). — Wherefore,  you  are  hereby  commanded  to  take 
the  said  J.  S.  and  him  commit  to  the  keeper  of  the  gaol  in 
and  for  said  county  ;  who  is  hereby  commanded  to  receive 


68 

him,  the  said  J.  S.  into  said  prisou,  and  him  safely  keep 
therein  until  he  pay  «-tid  fine,  or  be  legally  discharged  ;  or, 
(where  he  is  sentenced  to  be  imprisoned)  and  him  safely 
keep  therein  during  said  term,  or  until  he  is  duly  discharg- 
ed. Hereof  you  are  not  to  fail,  but  make  legal  service, 
and  leave  this  mittimus  with  gaid  keeper,  which  shall  be 
his  authority  for  the  safe  keeping  and  imprisonment  of  the 
said  J.  S. 

A.  B.  Justice  of  the  Peajce. 


CHAPTER  VIII. 

Forms  in  Civil  Actions. 

Of  Assumpsit. 

Actions  of  assumpsit  are  either  special  or  general  :  where 
a  particular  contract  is  declared  upon  and  set  out,  they 
are  special. 

1.  Declarations  on  notes. — In  actions  brought  by  the  ori- 
ginal promisee  against  the  promisor,  the  form  is  the  same, 
whether  the  note  is  negotiable  or  not. 

To  the  Sheriff  of  the  county  of  his  deputy,  or  ei- 

ther Constable  of  the  town  of  within  said  coun- 

ty, Greeting — 

By  authority  of  the  state  of  Connecticut,  you  are  here- 
by commanded  to  summon  John  Stiles,  of  in  the 
county  aforesaid,  to  appear  before  A.  B.  Esquire.  Justice 
of  the  Peace  for  the  county  of  at  his  office  in 
in  said  county,  on  the  day  of  A.  D.  at  9 
o'clock,  A.  M.  then  and  there  to  answer  unto  Joseph  Crafts, 
of  aforesaid,  in  an  action  or  plea  of  the  case,  where- 
upon the  plaintiff  declares  and  says,  that  the  defendant,  in 
and  by  a  certain  writing  or  note  under  his  hand,  by  him 
well  executed,  and  dated  the  day  of  A.  D. 
promised  the  plaintiff  to  pay  to  him  on  demand,  thirty-five 
dollars  with  the  interest :  as  by  said  writing  or  note  ready 
in  court  to  be  shewn,  appears.  Now  the  plaintiff  further- 
says,  that  the  defendant,  his  promise  aforesaid  not  regard- 
ing, hath  never  performed  the  same,  (although  often  re 


69 

quested  and  demanded,)  which  is  to  the  damage  of  the 
plaintiff  the  sum  of  thirty-five  dollars,  and  for  the  recovery 
thereof,  with  just  costs,  the  plaintiff  brings  this  suit.  Here- 
ef  fail  not,  and  of  this  writ  make  lawful  service,  and  re- 
turn. 

Dated  at  the        day  of  A.  D. 

A.  B.  Justice  of  the  Peace. 

Where  the  note  is  executed  by,  or  to,  partners  in  business, 
having  a  company  name,  it  is  to  be  varied  as  follows  :  To 
summon  A.  B.  and  C.  D.  both  of  merchants  and 

traders  in  company,  and  carrying  on  business  under  the 
name  and  firm  of  A.  B.  and  Company.  And  stating  the 
promise,  say  :  The  defendants,  in  and  by  a  certain  writing 
or  note  by  them  executed,  and  signed  by  their  said  compa- 
ny name,  promised  the  plaintiff.  Where  the  plaintiff's  are 
partners,  and  the  note  is  made  to  thtm  by  their  company  name, 
say  :  To  answer  unto  A.  B.  and  C.  D.  both  of 
merchants  and  traders  in  company,  and  carrying  on  busi- 
ness under  the  name  and  firm  of  A.  B.&Co.  Instating 
the  promise  :  promised  the  plaintiffs  to  pay  to  them  by  their 
said  company  name.  Where  the  suit  is  brought  by  an  exec- 
utor :  then  and  there  to  answer  unto  A.  B.  executor  of 
the  last  will  and  testament  of  C.  D.  deceased,  late  of 
.  In  a  plea  of  the  case,  whereupon  the 
plaintiff  declares  and  says  that  the  defendant,  in  and  by  his 
certain  writing  or  note  by  him  executed,  his  own  hand  be- 
ing thereunto  subscribed,  promised  the  said  C.  D.  he  then 
being  in  life,  to  pay  to  him,  &c.  In  alleging  the  breach : 
his  promise  aforesaid  disregarding,  hath  never  performed 
the  same,  either  in  the  life  time  of  the  said  C.  D.  or  since 
his  decease.  Where  the  plaintiff"  is  administrator  :  there 
and  then  to  answer  unto  A.  B.  administrator  of  the  goods 
and  estate  of  C.  D.  late  of  deceased.  The  prom- 

ise will  be  stated  the  same  as  in  case  of  executor.      Where  an 
executor  or  administrator  issued:  to  summon  A.  B.  of 
executor  of  the  last  will  and  testament  of  C.  D.  deceased, 
late  of  :  or,  administrator  of  the  goods  and  estate 

of  C.  D.  deceased.  In  alleging  the  promise  :  that  the  said 
C.  D.  in  his  life  time,  in  and  by  a  certain  writing  or  note, 
under  his  hand  and  by  him  well  executed,  promised  the 
plaintiff.  In  alleging  the  breach ; — and  which  said  prom 


70 

jse  the  said  C.  D.  never  performed  in  his  lifetime,  nor  hath 
the  same  heen  performed  by  the  defendant  since  the  de- 
cease of  the  said  C.  D. 

Form  of  Judgment  and  Execution,  where  an  executor  or  an 

minislrcitor  is  sued, 
H  county,  ss.  H 

At  a  court  holden  before  me,  on  the          day  of 
A.  D.  A.  B.  against  J.  S.  executor  of  the  last  will  and 

testament  of  C.  D.  late  of  deceased,  in  an  action 

on  the  case  for  that,  the  said  C.  D.  in  his  life  time,  in  and 
by  a  certain  note  by  him  executed,  promised  the  said  A.  B. 
the  sum  of  dollars  on  demand  and  interest  ;  and 

which  said  promise  the  said  C.  D.  never  performed  in  hi? 
life  time,  nor  the  defendant  since  his  death,  to  the  damage 
of  the  plaintiff  the  sum  of  thirty-five  dollars  ;  and  the  de- 
fendant pleads  and  says  thot  the  said  C.  D.  did  not  in  hi* 
life  time  assume  and  promise  in  manner  and  form  the  plain- 
tiff hath  alleged,  and  hereof  for  trial  puts  himself  on  the 
court,  and  the  plaintiff  does  the  same,  as  by  the  pleadings 
more  fully  appears  :  -<>nd  having  heard  the  parties  with 
their  witnesses  and  exhibits,  I  do  find  that  the  said  C.  D. 
did  assume  and  promise,  in  manner  and  form  the  plaintiff 
in  his  declaration  hath  alleged,  and  thereupon  it  is  consid- 
ered by  me  that  the  plaintiff  recover  of  the  goods  and  es- 
tate of  the  said  C.  D.  in  the  hands  of  the  defendant,  as  ex- 
ecutor of  his  said  last  will,  the  sum  of  dollars  dama- 
ges and  his  costs,  taxed  at  and  that  execution  issue 
against  the  goods  and  estate  of  said  deceased  in  the  hands  of 
the  defendant,  to  recover  the  same,  with  seventeen  cents 
more  for  said  execution,  and  returnable  according  to  law. 

Dated,  &c. 

Execution. 
To  the  Sheriff,  &c. — Greeting — 

Whereas  A.  B.  of  recovered  judgment  against 

the  estate  of  C   D.  late  of  deceased,  in  the  hands 

of  J.  S.  executor  of  the  last  will  of  the  said  C.  D.  before 
me,  a  Justice  of  the  Peace,  for  the  county  of  on 

the         day  of  A.  D.          for  the  sum  of 

dollars  damages,  and  for  the  sum  of  dollars  costs  of 

suit,  "as  appears  on  record  :  whereof  execution  remains  to 
be  done.  These  are  therefore  to  command  you,  that  of  the 


71 

money*,  goods  and  chattels  of  the  said  C.  D.  deceased,  in 
the  hands  of  the  said  J..  S.  to  be  by  him  shown  unto  you, 
within  your  precincts,  you  cause  to  be  levied,  paid  and  sat- 
isfied unto  the  said  A.  B.  the  aforesaid  sums,  being 
dollars  and  cents  in  the  whole,  with  seventeen  cents 
more  for  this  writ,  together  with  your  own  fees.  Hereof 
fail  not  and  make  due  return  of  this  writ,  with  your  doings, 
within  sixty  days  next  coming.  Dated,  &c. 

Q,.  R.  Justice  of  the  Peace. 

NOTE. — If  the  executor  does  not  pay  the  execution,  and 
he  has  not  represented  the  estate  of  the  deceased  insolvent, 
after  return  of  the  execution,  a  scire  faeias  may  issue 
against  him  and  judgment  be  obtained,  upon  which,  execu- 
tion will  issue  in  common  form  against  him  and  his  estate. 
An  executor  or  administrator  is  not  liable  to  be  sued  until 
the  time  .for  settling  the  estate  has  expired  ;  and  then  if 
the  estate  was  represented  insolvent,  he  is  liable  for  such 
sum  or  proportion  of  each  debt,  or  dividend,  as  the  credit- 
ors are  entitled  to  receive,  where,  the  estate  is  not  suffi- 
cient to  pay  the  whole  of  the  debts.  In  such  cases  he  may 
be  sued  directly  for  the  dividend,  or  on  the  original  claim, 
ns  executor,  and  judgment  given  only  for  the  amount  of  the 
dividend,  or  portion  of  his  claim,  to  which  the  plaintiff  may 
be  entitled. 

2.  DECLARATION  by  the  holder  of  a  note  not  negotiable  against 
the  endorser. 

In  case  of  a  general  or  blank  endorsement,  the  contract 
or  legal  liability  of  the  endorser  is  not  an  absolute  one,  but 
conditional.  It  is  an  undertaking  to  pay  the  note  in  case  it 
(cannot  be  collected  of  the  maker,  with  (Inf.  tlill^e.nce  un  the 
part  of  the  endorsee  or  holder.  In  ordinary  cases  he  must 
sue  the  maker,  and  can  only  come  upon  the  endorser,  after 
failure  of  collecting  the  debt  by  suit. 

In  it  plea  of  the  case,  for  that,  on  the         day  of 
A.  D.  the  defendant  had  in  his  possession  a  certain 

writing  or  note,  made  and  executed  by  A.  B.  whereby  and 
wherein  the  said  A.  B.  promised  for  value  received,  to  pay 
to  the  defendant  the  sum  of  twenty  dollars  on  demand  and 
interest ;  and  that  afterwards,  viz.  on  the  day  and  year  l.jst 
aforesaid,  fora  valuable  consideration,  the  defendant  i»y  lii-i 


72 

endorsement  on  the  back  of  said  note,  assigned  and  trans- 
ferred said  note  to  the  plaintiff,  and  authorised  him  to  col- 
lect and  receive  the  contents  of  said  note  to  his  own  use  and 
benefit.     And  afterwards,  viz.  on  the          day  of 
A.  D.  the  plaintiff  caused  said  note  to  be  put  in  suit, 

by  a  writ  of  attachment  issued  by  Q,.  R.  justice  of  the  peace, 
and  directed  to  a  proper  officer  to  serve,  of  the  date  last 
aforesaid,  and  returnable  before  said  Q,.  R.  justice  of  the 
peace  for  the  county  of  on  the  day  of 

A.  D.  at  in  said  county  ;  and  which  said  writ 

of  attachment  the  plaintiff  delivered  to  O.  P.  constable  of 
said  town  of  who  thereupon  made  diligent  search 

for  goods  or  estate  of  the  said  A.  B.  but  finding  none,  he  at- 
tached the  body  of  the  said  A.  B.  and  took  bail  for  his  ap- 
pearance at  court,  and  returned  said  writ  to  said  Justice 
more  than  twenty-four  hours  before  the  time  the  same  was 
made  returnable.  And  on  the  said  day  of  the  plain- 

tiff obtained  judgment  in  the  name  of  the  defendant,  before 
said  Justice,  Q,.  R.  in  said  suit  against  the  said  A.  B.  for  the 
sum  of  dollars  damages,  and  the  sum  of  dol- 

lars costs  of  suit ;  for  which  said  sums  execution  was  duly 
issued,  and  for  seventeen  cents  more,  the  price  thereof, 
by  the  said  Justice,  Q,  R.  and  directed  to  a  proper  officer 
to  serve,  returnable  within  sixty  days  from  the  date  there- 
of, and  bearing  date  the  day  of  A.  D.  ; 
and  the  plaintiff  delivered  said  execution  into  the  hands  of 
said  O.  P.  then  a  lawful  constable  of  the  said  town  of 
who  thereupon,  and  by  virtue  thereof  made  diligent  search 
for  goods  and  estate  of  the  said  A.  B.  whereon  to  levy  to 
satisfy  said  execution,  and  his  fees  thereon,  but  could  find 
none,  and  none  were  shewn  unto  him  by  the  said  A.  B. 
whereupon  the  said  constable  levied  said  execution  on  the 
body  of  the  said  A.  B.  and  him  committed  to  the  keeper  of 
the  gaol  in  and  for  said  county  of  to  be  confined  in 
said  prison  on  said  execution.  And  the  plaintiff  further 
says,  that  afterwards,  viz.  on  or  about  the  day  of 
in  the  year  aforesaid,  the  said  A.  B.  had  legally  administer- 
ed to  him,  by  C.  D.  Justice  of  the  Peace  for  said  county, 
the  oath  by  law  provided  for  poor  debtors  in  prison,  and 
the  said  A.  B.  was  thereupon  discharged  from  confinement 
in  said  gaol  on  said  execution  ;  and  which  said  execution, 
with  the  said  constable's  doings  endorsed  thereon,  was  re- 


turned  to  said  Justice,  Q,.  R.  during  the  life  thereof.  And 
the  plaintiffs-ays  that  said  execution  hath  not  in  any  other- 
wise been  satisfied  than  by  the  aforesaid  levy,  and  that  tho 
same  with  the  said  constable's  fees  thereon,  amounting;  to 

dollars  cents,  is  now  justly  due  unto  tl,r<  p] 

tiff,  and  that  said  judgment  hath  not  been  reversed  or  set 
aside,  but  is  now  in  force  And  the  plaintiff  says  ih<?i  by- 
reason  of  the  premises,  the  defendant  became  liable  to  p.iy 
the  plaintiff  the  debt  and  costs  in  said  execution,  and  the 
said  officer's  fees  thereon,  and  in  consideration  thereof,  af- 
terwards, viz.  on  the  day  of  A-  D.  at  said 
as*  imed  upon  himself  and  faithtuliy  promised  the 
plaintiff  to  pay  him  said  several  sums  contained  in  said  ex- 
ecution, and  the  officer's  fees  thereon,  amounting  to  the  sum 
of  and  the  interest  thereon,  when  requested  ;  yef 
the  plaintiff  says,  that  the  defendant  his  promise  aforesaid 
not  regarding,  hath  never  performed  the  same,  although  of- 
ten requested  and  demanded,  to  the  damage  of  the  plaintiff 
the  sum  of  dollars,  &c. 

[Where  the  debtor  in  the  assigned  note  was  notoriously 
insolvent,  at  the  time  the  note  was  assigned,  the  endorser 
may  be  sued  without  bringing  a  suit  on  the  note.  In  such 
case  the  declaration  will  be  the  same  to  the  allegation  of 
the  assignment  of  the  note  to  the  plaintiff,  and  then  a<  fol- 
lows :] 

And  the  plaintiff  presented  said  note  with  the  endoi>r- 
ment  thereon,  to  the  said  A.  B.  at  and  requested  pay- 

ment of  the  same  ;  but  the  said  A.  B.  then  and  there  neg- 
lected and  refused  iv»  pay   said  note  or  any  part  thereof 
And  the  plaintiff  snys,  that  the  said  A.  B.  was  at  the  time 
said  note  was  assigned  to  him  .i<?  aforesaid,  and  ever  since. 
hath  been  insolvent,  and  wholly  unable  to  pay  the  contents 
of  said  note,  and  that  he  did  not  at  the  time  of  the  assign 
ment  of  said  note,  or  at    any    time    since,  possess   any 
goods  or  estate  except  what  are  by  law  exempted  from  be 
ing  taken,  that  could  be  attached  to  secure  sau'  -M)t,  which 
is  now  wholly  unpaid  and  justly  due  to  the  plain . iff.     And 
the  plaintiff  says  that  by  means  of  the  premises  the  defendant 
became  liable  to  pay  to  him  the  contents  of  said  note,  and 
in  consideration  thereof  afterwards  (viz.)  on  the 
day  of  at  assumed  and  promised   thr>  plaintiff 

to  pay  to  him  on  request,  the  contents  of  the  same  note  ; 
7 


but  his  promise  not  regarding,  hath  not  performed  the  same 
although  often  requested,  &c. 

[If  the  debtor  absconds  before  the  note  becomes  due  or 
before  demand,  say  :] 

And  the  said  A.  B.  before  said  note  became  due,  (or  im- 
mediately after  the  assignment  of  said  note  if  then  due) 
absconded  out  of  this  state  to  parts  to  the  plaintiff  unknown  ; 
;ind  at  the  time  of  the  assignment  of  said  note,  and  when 
the  said  A.  B.  absconded  as  aforesaid,  he  was  not  in  the 
possession  of  any  goods  or  estate  liable  to  be  taken  for 
debt  ;  but  was  totally  insolvent  and  wholly  unable  to  pay 
said  note,  and  known  by  the  defendant  so  to  be,  when  he 
assigned  said  note.  And  the  plaintiff  says,  that  by  means 
of  the  premises  the  defendant  became  liable  to  pay  the 
contents  of  said  note,  and  being  so  liable  &:c. 

[Where  the  endorser  interferes  with  the  collection  of 
the  note  or  discharges  the  same,  the  declaration  will  be 
the  same  until  vou  state  the  interference  of  the  defendant  :] 

And  the  defendant  appeared  before  said  justice  Q,.  R.  on 
the  said  day  of  A.  D.,  and  then  and  there 

withdrew  said  suit  and  prevented  the  plaintiff  from  obtain- 
ing judgment  on  said  note  and  collecting  the  same  ;  and 
which  said  note  hath  never  been  paid  by  the  said  A.  B.  to 
the  plaintiff,  but  is  now  justly  due  to  him.  And  the  plain- 
tiff says,  that  by  means  of  the  premises  the  defendant  be- 
came liable  &c. 
[Or  where  the  defendant  gives  a  discharge  of  the  note,  say  :] 

And  the  said  A.  B.  appeared  before  said  justice  at  the 
time  and  place  aforesaid  and'answered  to  said  action  ;  and 
then  and  there  as  a  defence  to  the  same,  plead  or  gave  in 
evidence,  a  discharge  from  the  defendant  to  the  said  A.  B. 
of  all  claims  and  demands,  executed  after  the  date 
and  assignment  of  said  note,  and  before  the  said  A.  B. 
had  had  notice  of  said  assignment;  and  the  said  justice 
did  then  and  there  give  judgment  for  the  said  A.  P>.  to  re- 
cover hi.-  costs  :  and  by  means  of  the  defendant's  giving  said 
discharge  the  plaintiff  was  def'.-ntcd  in  the  collection  of-iid 
note,  and  put  to  great  cost  and  charge  (viz.)  the  sum  of  -f, 
'dollars,  and  the  said  note  hath  never  been  paid  to  the 
}=l  iintiiV.  but  i*  m>\v  justly  due  to  him,  together  with  his 
said  cost  and  charges.  And  the  plaintiff  say;,  that  by  means 
.-.f  the-  premises  the  defendant  became  liable  to  pay  the 


contents  of  said  note  and  his  said  costs  and  charges,  arising 
from  said  suit  &c. 

[Where  there  has  been  a  discharge,  or  payment,  and  no 
suit  commenced  on  the  note,  say  :] 

And  after  the  assignment  of  said  note  (viz.)  on  the 
day  of  A.  D.  the  defendant  settled  with  the  said  A.  R. 
and  received  from  him  the  contents  of  said  note  in  full,  and 
the  said  A.  B.  then  and  there  paid  to  the  defendant  said 
note,  the  said  A.  B.  not  having  been  notified  by  the  plain- 
tiff of  said  assignment  ;  or,  And  after  the  assignment  of 
said  note  and  before  the  said  A.  B.  had  been  notified  of 
such  assignment  (viz.)  on  or  about  the  day  of 

A.  D.  the  defendant  executed  to  the  said  A.  B.  for  a  valua- 
ble consideration,  a  discharge  of  all  claims  ancf  demands, 
whereby  said  note  was  cut  off,  and  discharged,  and  the 
plaintiff  prevented  from  the  collection  of  the  same  ;  and 
which  said  note  hath  not  been  collected  or  paid  to  the 
plaintiff,  but  is  now  justly  due  to  him.  And  by  means  of 
the  premises  the  defendant  became  liable  &c. 

3.  DECLARATIONS  on  Negotiable  Notes. 
Justices  of  the  peace  have  now  jurisdiction  of  negotia- 
ble notes,  where  they  are  for  the  sum  of  thirty-five  dol- 
lars, and  expressed  not  to  be  on  interest.  A  note  less 
than  thirty-five  dollars,  cannot  be  negotiable,  and  unless 
expressed  not  to  be  on  interest,  all  notes  now  draw  inter- 
est, consequently  the  accruing  interest  will  immediately 
take  away  the  jurisdiction  of  the  justice.  But  it  some- 
times happens  that  justices  have  occasion  to  make  writs 
returnable  to  the  county  court.  A  negotiable  note  must 
be  for  thirty-five  dollars  or  more,  payable  in  money  only, 
to  any  person  or  his  order  or  bearer.  The  only  difference 
whether  a  note  is  payable  to  order  or  bearer,  is,  that  the 
latter  pass  by  delivery,  and  the  former  by  endorsement. 
A  negotiable  note  when  assigned  or  negotiated,  is  complete- 
ly transferred,  so  that  the  assignee  can  sue  it  in  his  own 
name,  and  the  original  promisee  cannot  discharge  or  con-- 
troul  it.  It  is  the  duty  of  the  holder  of  a  negotiable  note 
in  order  to  charge  the  indorser,  to  make  demand  of  the 
maker  of  payment  of  the  note  on  the  third  day  after  the 
note  falls  due,  being  the  last  day  of  grace  as  it  is  called, 
if  the  maker  neglects  or  refuses  to  pay  the  note,  the  hold- 


er  must  immediately  give  notice  to  the  endorser  of  the 
failure  of  payment.  If  the  endorser  lives  in  the  same 
town  he  must  have  actual  notice  ;  b\:i  if  he  lives  out  of 
town  he  may  be  notified  by  a  letter  put  into  the  post-office. 
When  tiie  note  is  over  due  at  the  time  it  is  negotiated,  still 
a  demand  must  be  made  of  the  maker  with  due  diligence, 
and  notice  immediately  given  to  the  endorser  as  in  other 
cases  (a). 

The  Indorser  against  the  Maker. 

In  a  plea  of  the  case  for  that,  the  defendant  in  and 
by  a  certain  note  or  writing  under  his  hand,  and  by  him 
well  executed,  promised,  for  value  received,  to  pay  to  one 
A.  B.  of  or  order,  the  sum  of  with  the  interest, 

in  ninety-five  days  from  the  date  of  said  note,  and  which 
was  dated  the  day  of  A.  D.  ;  and  the  said 

A.  B.  afterwards  (viz.)  on  the  day  of 

A.  D.  by  his  endorsement  of  the  same  note  in  writing  un- 
der his  hand,  ordered  the  contents  thereof  to  be  paid  to 
the  plaintiff  or  his  order,  according  to  the  tenor  of  said 
note,  of  which  the  defendant  then  and  there  had  notice, 
and  thereby  became  liable,  and  in  consideration  thereof, 
then  and  there  promised  the  plaintiff  to  pay  to  him,  the  con- 
tents of  the  same  note,  according  to  the  tenor  thereof,  yet, 
although  often  requested  and  demanded,  the  defendant 
had  never  paid  said  sum  or  any  part  thereof,  but  wholly 
neglects  &  refuses  so  to  do,  to  the  damage  of  the  plaintiff,  &c. 
Indorsee  against  the  Indorser. 

In  a  plea  of  the  case  for  that,  one  A.  B.  ©f 
on  the  day  of  A.  D.,      made  his  certain 

writing  or  promissory  note,  his  own  proper  hand  being 
thereunto  subscribed,  dated  the  same  day  &  year  last  afore- 
said, thereby  and  therein  promised  the  defendant  to  pay  to 
him  or  order,  for  value  received,  the  sum  of 
dollars  with  interest,  in  ninety-five  days  from  the  date 
thereof.  And  afterwards  (viz.)  on  the  day  of 

A.  D.  by  his  endorsement  of  the  same  note  in  wri- 
.ting  under  his  hand,  the  defendant  ordered  the  contents  of 
the  same  note  to  be  paid  to  the  plaintiff  or  his  order,  ac- 
cording to  the  tenor  thereof.  And  the  plaintiff  says  that 
afterwards,  9n  the  day  said  note  became  due  and  payable 
(viz.)  on  the  day  of  A.  D.  at 

(a)  2  Conn.  R»p.  419. 


77 

he  presented  said  note  with  the  said  endorsement  thereon, 
unto  the  said  A.  B.  and  requested  him  to  pay  the  contents 
of  the  same  note,  according  to  the  tenor  thereof,  and  of 
gaid  endorsement ;  but  the  said  A.  B.  then  and  there  neg- 
lected and  refused  to  pay  the  sum  of  money  contained  in 
said  note,  nor  hath  he  yet  paid  the  same  oT  any  part  there- 
of; of  which  the  plaintiff  afterwards  (viz.)  on  the  day  and 
year  last  aforesaid,  gave  notice  to  the  defendant.  And  the 
plaintiff  says,  that  by  means  of  the  premises,  the  defendant 
became  liable  to  pay  to  the  plaintiff  the  sum  of  money 
mentioned  in  the  same  note,  and  being  so  liable  and  in  con- 
sideration thereof,  afterwards  (viz.)  on  the  day  and  year 
last  aforesaid,  assumed  and  promised  &,c. 

[Where  the  note  has  passed  through  several  hands  say  :] 
One  A.  B.  made  and  executed  his  certain  promissory  note, 
dated  &,c.  wherein  he  promised  to  pay  to  C,  D.  or  order, 
the  sum  of  and  the  interest,  in  ninety-five  days 

from  the  date  thereof;  and  that   afterwards  (viz.)  on  the 
day  of  A.  D.       the  said  C.  D.   by   his  en- 

dorsement in  writing  made  on  said  note,  his  own  hand  be- 
ing thereto  subscribed,  ordered  the  contents  of  said  note 
to  be  paid  to  J.  S.  or  order,  for  value  received  ;  and- -after- 
wards the  said  J.  S.  (viz.)  on  the  day  of 
\.  D.,  the  said  sum  contained  in  said  note  being  unpaid, 
by  his  endorsement  made  on  said  note,  under  his  hand,  and 
for  value  received,  ordered  the  contents  of  said  note  to  be 
paid  to  the  plaintiff  &,c. 

[Or  if  you  please,  you  may  declare  against  a  prior  en- 
dorser in  the  same  manner  as  though  there  were  no  sub- 
-equent  endorsers,  alleging  the  note  to  have  been  directly 
endorsed  by  the  prior  endorser  to  the  holder,  taking  no 
notice  of  the  intermediate  endorsements  ;  but  in  such  cases 
you  must  strike  out  the  subsequent  endorsements.] 

4.  DECLARATION  on  a  Receipt  taken    by  tfn  Officer  for  the 
safe  keeping  and  delivery  of  property  taken  on  Execution. 
In  a  plea  of  the  case  for  that,   the  plaintiff  says,  on  the 
day  of     A.  D.,      he  was  and  ever  since  hath  been 
a  constable  of  the  town  of         in  said  county  ;  and  that  af- 
terwards (viz.)  on  the  day  and  year  last  aforesaid,  there 
was  delivered  into  his  hands  to  levy  a  writ  of  execution 
issued  by  .'.  P.  justice  of  the  peace  for  the  county  of 


78 

upon  a  judgment  recovered  before  said  justice,  by  A.  B, 
against  C.  D.,  and  of  the  sum  of  dollars 

damages,  and  dollars  costs  including  seventeen 

cents  for  said  writ  of  Execution,  and  which  was  directed 
to  the  sheriff  of  said  county  of  his  deputy  or  ei- 

onstable  of  said  town  of  and  was  in  due  form 

of  law.  And  the 'plaintiff  afterwards  repaired  with  said 
execution  to  the  usual  place  of  abode  of  the  said  C.  D.  in 
and  then  and  there  made  demand  of  the  debt, 
or  sum  due  on  said  execution,  and  his  fees  for  executing 
the  same,  which  the  said  C.  D.  then  and  there  neglected 
and  refused  to  pay  ;  whereupon  the  plaintiff  afterwards 
(viz.)  on  the  day  of  A.  D.  at  said 

said  execution  being  in  full  life,  levied  the  same  on  a  cer- 
tain horse,  the  proper  goods  of  said  C.  D.,  took  the  same 
into  bis  possession,  and  thereupon  drew  a  description  of 
said  horse,  and  posted  up  the  same  on  the  public  sign-post 
in  the  society  of  in  said  town,  within  which  socie- 

ty said  property  was  taken  ;  and  with  said  description  of 
said  property,  the  plaintiff  also  set  up  a  declaration  that 
the  same  would  be  disposed  of  at  public  vendue  at  the 
place  where  posted,  at  the  end  of  twenty  days  from  the 

day  of  that  day  having  been  previously  named  at 
the  hour  of  o'clock  in  the  afternoon.  And  the  plaintiff 
says  that  afterwards  (viz.)  on  the  day  of 

A.  P.,  whilst  he  held  said  property  to  satisfy  said  execu- 
tion ,  ud  hie  fi'os  thereon,  at  their  special  request,  he  de- 
livered said  horse  into  their  hands  for  safe  keeping  and 
re-delivery  ;  and  thereupon  and  in  consideration  thereof 
the  defendants  executed  and  delivered  to  the  plaintiff  a 
certain  writing  or  receipt,  dated  the  day  and  year  last 
aforesaid,  their  hands  being  thereunto  subscribed,  where- 
in they  acknowledged  the  receipt  of  said  property,  and 
promised  the  plaintiff  safely  to  keep  said  horse,  and  to  re- 
deliver  the  same  at  said  sign-post,  on  the  day  and  hour 
mentioned  aforesaid,  for  the  disposal  of  the  same  accord- 
ing to  law. 

And  the  plaintiff  says  that  the  defendants  did  not  re-deliver 
said  horse  to  the  plaintiff  at  paid  sign-post  on  said 
day  of  although  he  was  then   and  there  ready  to 

receive  the  same  ;  nor  h;<ve  they  at  ony  time  since  deliv- 
ered said  horse  to  the  plaintiff,  although  often  requested 


and  demanded.  And  the  plaintiff  says  that  said  judgment 
hath  not  been  reversed  or  set  aside,  and  that  said  execution 
hath  not  heen  satisfied  otherwise,  than  by  the  aforesaid 
levy,  but  that  the  same  is  now  justly  due  to  the  plaintiff, 
together  with  the  interest,  and  his  lawful  fees  thereon, 
amounting  to  dollars  and  cents,  which 

several  sums,  the  defendants  have  neglected  and  refused  to 
pay,  although  often  requested  and  demanded.  And  the 
plaintiff  says,  that  by  means  of  the  premises  he  has  been 
injured  and  damaged  the  sum  of  dollars,  to  re- 

cover which,  with  costs,  this  suit  is  brought  &.c. 

5.  DECLARATION  by  the  Payee  against  the  Acceptor  of  an 
Order. 

In  a  plea  for  that,  on  the  da}'  of  A.  D. 

one  A.  B.  of  drew  his  certain  order  in  writing:,  his 

own  hand  being  thereto  subscribed,  dated  the  day  and  year 
last  aforesaid,  directed  to  the  defendant,  therein  requesting 
him  to  pay  to  the  plaintiff  or  his  order  dollars  on 

demand  ;  and  the  said  A.  B.  then  delivered  the  said  order 
to  the  plaintiff,  for  value  received  of  him  ;  and  the  plain- 
tiff afterwards  (viz.)  on  the  day  of  presented  said 
order  to  the  defendant  for  his  payment  or  acceptance,  and 
the  defendant  then  neglected  to  pay  said  order,  but  accep- 
ted the  same,  whereby  he  became  liable  and  in  consider- 
tion  thereof  afterwards  (viz.)  on  the  same  day  and  year  last 
aforesaid,  assumed  and  faithfully  promised  the  plaintiff  to  pay 
to  him  the  said  sum  mentioned  in  said  order  and  the  lawful  in- 
terest thereon  when  requested  ;  yet  the  defendant  his  said 
promise  disregarding,  hath  never  performed  the  same,  al- 
though often  requested,  to  the  damage  &c. 

Against  the  Drawer  on  an  order  not  accepted. 

In  a  plea  for  that,  on  the  day  of  A.  D. 

the  defendant  for  value  received  of  the  plaintiff,  drew  his 
certain  writing  or  order,  of  the  date  last  aforesaid,  his  own 
hand  being  thereto  subscribed,  directed  to  A.  B.  therein 
requesting  the  said  A.  B.  to  pay  to  the  plaintiff  or  his  or- 
der, the  sum  of  dollars  on  demand  ;  and  the  plain- 
tiff afterwards  (viz.)  on  the  day  of  A.  D.  pre- 
sented said  writing  or  order  to  the  said  A.  B.  for  his  accep- 
tance and  payment ;  and  the  said  A.  B.  then  and  there  re- 
fused to  pay  or  accept  said  order,  of  which  the  defendant 


GO 

afterwards,  (viz.)  on  the  day  of  A.  D. 

h;-.d  due  notice  from  the  plaintiff,  whereby  the  defendant 
became  liable  to  pay  to  the  plaintiff  the  contents  ot  said 
order,  and  in  consideration  thereof,  assumed  and  promis- 
ed kc. 

6.  DECLARATION  on  Account  stated. 

In  a  plea  of  the  case  for  that,  on  the  day  of 

A.  D.  the  plaintiff  and  defendant  reckoned  and  ac- 
counted together  of  sundry  sums  of  money  and  dealings 
which  before  that  time  had  passed  between  them  ;  and  the 
defendant  was  found  in  arrear  to  the  plaintiff  in  the  sum  of 
dollars,  and  being  so  in  nrrear,  the  defendant  in 
consideration  thereof,  assumed  and  promised  to  pay  said  sum 
when  requested  &c. 

7.  DECLARATION  of  assumpsit  on  Due  Bill. 
In  a  plea  of  the  case  for  that,  on  the  day  of 

A.  D.      the  defendant  being  indebted  to  the 
plaintiff  in  the  sum  of  executed  under  his  lv  ml, 

and  of  the  date  last  aforesaid,  his  certain  writing  or  due- 
bill,  wherein  he  acknowledged  himself  to  owe  and  be  in- 
debted to  the  plaintiff  in  the  said  sum  of  dollars, 
whereby  he  became  liable  to  pay  to  the  plaintiff  said  sum 
of  dollars  on  demand,  and  in  consideration  thereof, 
afterwards  (viz.)  on  the  day  of  assumed 
and  promised  the  plaintiff  to  pay  to  him  said  sum,  when 
thereto  requested  :  yet  his  promise  disregarding,  he  hath 
never  performed  the  same,  although  often  requested,  to 
the  plaintiff's  damage  &c. 

8.  General  count  or  declaration  for  money  had  and  received. 
In  a  plea  of  the  ca«e,  whereupon  the  plaintiff  declares 
and  says  that  on  the          day  of  A.  D.  the  de- 

fendant was  indebted  to  the  plaintiff  in  the  sum  of  one  hun- 
dred dollars,  for  money  before  that  time  lent  by  plaintiff  to 
the  defendant  at  his  request,  and  by  him  received  of  the 
plaintiff  for  the  plaintiff's  use  ;  and  being  so  indebted,  and 
in  consideration  thereof,  afterwards,  on  the  day  of 
A.  D.  assumed  upon  himself  and  faithfully  promised 

the  plaintiff  to  pay  to  him  said  sum  of  one  hundred  dollars 
when  requested  ;  yet  his  said  promise  not  regarding,  tin- 


81 

defendant  hath  never  performed  the  same,  although  oi'teu 
requested,  &c. 

9.  General  count,  for  goods  sold  and  delivered. 

In  a  plea  of  the  case  whereupon  the  plaintiff  declares  and 
says,  that  on  the         day  of  A.  D.          the  defend- 

ant was  indebted  to  the  plaintiff  in  the  sum  of  one  hundred 
dollars  for  goods,  wares  and  merchandize,  before  that  time 
sold  and  delivered  by  the  plaintiff  to  the  defendant,  at  his 
special  instance  and  request  ;  and  being  so  indebted,  and 
in  consideration  thereof,  afterwards,  viz.  on  the  day  of 
A.  D.  the  defendant  assumed  upon  himself 

and  faithfully  promised  the  plaintiff  to  pay  him  said  sum  of 
one  hundred  dollars  and  the  interest  thereof,  when  request- 
ed ;  yet  his  promise  not  regarding,  he  hath  never  perform 
ed  the  same,  although  often  requested,  &c. 

Or,  where  the  price  in  not  agreed  on. 

In  a  plea  of  the  case  for  that,  on  the         day  of 
A.  D.  in  consideration   that  the  plaintiff  before   that 

time,  at  the  special  request  of  the  defendant,  had  sold  and 
delivered  to  the  defendant  divers  goods,  wares  and  mer- 
chandize, then  and  there  undertook  and  promised  the 
plaintiff  to  pay  to  him  for  the  said  goods,  wares  and  mer- 
chandize, so  much  money  as  the  same  were  reasonably 
worth  at  the  time  of  their  sale  and  delivery  as  aforesaid, 
when  requested.  And  the  plaintiff  says  that  said  goods, 
wares  and  merchandize  were  reasonably  worth  the  sum  of 
dollars,  of  which  the  defendant  afterwards,  viz.  on 
the  day  of  had  notice,  yet  his  promise  disre- 

garding, he  hath  never  performed  the  same,  &,c. 

10.  Declaration  for  labour  and  services  performed,  ;r/ie/-e 

no  price  is  agreed  on. 

In  a  plea  of  the  case  for  that  on  the  day  of 
A.  D.  in  consideration  that  before  that  time,  the  plain- 
tiff had  performed  for  the  defendant  divers  services  and 
days  labour  upon  his  farm,  at  his  special  request,  the  de- 
fendant undertook  and  promised  the  plaintiff  to  pay  to  him 
so  much  money  as  said  services  and  labour  were  reasona- 
bly worth  at  the  time  they  were  performed  for  the  defend- 
ant as  aforesaid,  when  thereto  requested.  And  the  plain- 
tiff says  that  said  services  and  labour  were  reasonably 


82 

Worth  the  ?um  of  dollars,  of  which  the  defendant  af- 

terwards, yiz.  on  the         day  of  had  notice,  yet  his 

promise  and  undertaking  disregarding,  he  hath  never  per- 
formed the  same,  &c. 

11.  Declaration  for  use  and  occupation  of  real  estate,  when 
the  rent  is  agreed  on. 

In  a  plea  of  the  case,  whereupon  the  plaintiff  declares 
and  says  that  on  the         day  of  A.  D.  the  de- 

fendant was  indebted  to  the  plaintiff  in  the  sum  of 
for  the  use  and  occupation  of  a  certain  piece  or  parcel  of 
land  belonging  to  the  plaintiff,  and  bounded  and  described 
as  follows,  viz.  [here  describe  the  land]  by  the  permission 
and  consent  of  the  plaintiff,  and  at  the  request  of  the  de- 
fendant, for  months  and  days,  viz.  from  the  day 
of  A.  D.  to  the  day  of  A.  D.  ;  and  in  consid- 
eration thereof  afterwards,  viz.  on  the  day  of  A.  D. 
undertook  and  faithfully  promised  the  plaintiff  to  pay  to  him, 
the  same  sum  when  requested  ;  and  although  often  request- 
ed, 4-c. 

12.   Where  the  rent  is  not  agreed  upon. 

Whereupon  the  plaintiff  declares  and  says  that  on  the 
day  of        A.  D.  the  defendant,  in  consideration  that 

before  that  time,  at  his  own  special  request,  and  by  the 
permission  and  consent  of  the  plaintiff,  had  used  and  occu- 
pied a  certain  messuage,  consisting  of  a  dwelling  house  and 
other  buildings,  and  the  garden  and  yard  belonging  thereto, 
situated  in  and  bounded  and  described  as  follows. 

viz.  for  the  sp;»C£  of         months  and     days,  viz. 

from  the         day  of  A.  D.         to  the         day  of 

A.  D.  undertook  and  faithfully  promised  the  plaintiff 

to  pay  to  him  so  much  money  as  the  use  and  occupation  of 
said  messuage  during  the  period  aforesaid,  was  reasonably 
worth,  when  thereto  requested.  And  the  plaintiff  says 
that  the  use  and  occupation  of  said  messuage  during  said 
time  was  worth  dollars,  of  which  the  defendant  after- 

wards had  notice,  viz.  on  the          day  of  A.  D. 

yet  disregarding  his  said  promise  and  undertaking,  he  hath 
never  performed  the  same,  although  often  requested,  &c. 

13.    Writ  and  Declaration  by  and  against  a  town  for  support- 
ing a  Pauper. 
To  the  Sheriff.  &c.      Summon  A.  B.  and  C.  D.  two  of 


83 

the  principal  inhabitants,  and  the  rest  of  the  inhabitants  of 
the  town  of  W  in  the  county  aforesaid,  by  leaving  a 
true  and  attested  copy  of  this  writ  with  the  said  A.  B.  one 
of  the  select  men  of  the  said  town  of  W  or  with  the  said 
C.  D.  clerk  of  said  town,  to  appear  before  J.  M.  Justice  of 
the  Peace  within  and  for  the  county  of  on  the 

day  of  A.  D.         at  9  o'clock,  forenoon,  then  and 

there  to  answer  unto  O.  P.  one  of  the  principal  inhabitants, 
and  the  rest  of  the  inhabitants  of  the  town  of  H  in  the 

county  of  in  a  plea  of  the  case  for  that,  the  plaintiffs 

declare  and  say,  on  the         day  of  A.  D.  the 

defendants  were  indebted  to  plaintiffs  in  the  sum  of 
dollars  for  monies  before  that  time  laid  out,  paid  and  ex- 
pended by  the  plaintiffs  in  support  of  one  S.  T.  a  pauper, 
of  and  belonging  to  said  town  of  W  and  then  and  ever 

since  having  a  legal  settlement  therein,  the  said  S.  T.  be- 
ing, when  said  money  was  so  expended  for  his  support  with- 
in the  said  town  of  H  and  wholly  nnable  to  provide  for 
or  support  himself,  entirely  destitute  of  property,  and  in  a 
distressed  and  suffering  condition,  of  all  which  the  defend- 
ants afterwards  viz.  on  the  day  of  A.  D.  at 
the  said  town  of  had  notice,  and  thereupon  became 
liable  to  pay  to  the  plaintiffs  the  aforesaid  sum  of  dol- 
lars, and  in  consideration  thereof,  assumed  upon  themselves 
and  faithfully  promised  the  plaintiffs  to  pay  to  them  the 
same  sum  of  money  when  thereto  requested  ;  yet  the  de- 
fendants their  promise  and  undertaking  aforesaid  not  re- 
garding, have  never  performed  the  same,  although  often  re- 
quested and  demanded,  and  particularly  on  the  day  of 
A.  D.  at  said  town  of  W  to  the  damage  of 
the  plaintiffs,  &,c. 


CHAPTER  IX. 

ACTION  OF   ACCOUNT. 

1 .  Declaration. 

In  a  plea  that  to  the  plaintiff,  the  defendant  render  his 
reasonable  account,  during  the  time  in  which  he  was  the 
plaintiff's  bailiff  and  receiver,  whereupon  the  plaintiff  de- 


84 

clares  and  says,  that  from  the         day  of  till  the  day 

of  the  defendant  was  the  bailiff  and  receiver  of  the 

plaintiff,  and  did  during  that  time,  receive  of  the  plaintiff  di- 
vers goods  and  merchandize,  , '\z.  to  sell  and  dispose 
of,  to  merchandize  with,  and  make  profit  thereof,  and  to 
render  his  reasonable  account  thereof  to  the  plaintiff  when 
he  should  afterwards  be  thereto  requested  :  yet  the  plain- 
tiff says,  that  the  defendant  has  hitherto  refused  and  still  does 
refuse  to  render  his  reasonable  account  thereof,  though  of- 
ten requested,  which  is  to  the  damage  of  the  plaintiff  the 
sum  of  and  to  recover  the  same,  and  that  the  defend- 
ant render  his  reasonable  account,  during  the  time  he  was 
bailiff  and  receiver  as  aforesaid,  the  plaintiff  brings  this 
suit. 

Plea. 

The  defendant  pleads  and  says  that  he  is  not  bailiff  and 
receiver  of  the  plaintiff's  said  goods,  fyc.  to  account,  in  man- 
ner and  form  the  plaintiff  hath  alleged,  and  hereof  for  trial 
puts  himself  on  the  court. 

Plaintiff  for  himself. 
And  the  defendant  does  likewise.      Defendant  for  himself. 

Record. 
H  county,  ss.  H  ,         day  of         A.  D. 

At  a  court  holden  before  me,  A.  B.  against  C.  D.  in  an 
action  of  account,  wherein  the  said  A.  B.  declares  and  say£ 
that  from  the  day  of  A.  D.  to  the  day  of 
the  said  defendant  was  bailiff  and  receiver  of  the  plaintiff, 
and  during  that  time  received  of  the  plaintiff  divers  goods, 
&c.  viz.  to  sell  and  dispose  of,  and  to  render  his  reason- 
able account  thereof  when  requested  ;  yet  that  he  hath 
neglected  and  refused  so  to  do,  although  often  requested, 
to  the  dama°.e  of  the  plaintiff  the  sum  of  dollars  ;  to 

whic'i  the  defendant  pleads  that  he  is  not  bailiff  and  receiv- 
er of  the  plaintiff,  to  account  as  the  plaintiff  hath  alleged, 
a  ,•.-!  i  ereof  puts  himself  on  the  court  for  trial,  and  the  plain- 
tiff d  t  •  likewise; — having  fully  heard  the  parties  with  their 
evidences,  this  court  do  find  that  the  defendant  is  bailiff  and 
receiver  --.-  liieged,  and  consider  and  give  judgment  that  he 
do  nccoun.  ;  wbarenpon  I  proceeded  to  take  and  examine 
the  said  accounts  of  the  said  parties,  and  having  fully  heard 
them  under  oath,  with  {heir  witnesses  and  exhibits,  do  find 


lhat  the  defendant  is  in  arrear  to  the  plaintiff  the  sum  of 
dollars,  whereupon  it  is  considered  that  the  plaintiff  recov- 
er of  the  defendant  the  said  sum  of  dollars  damages 
and  his  costs,  taxed  at          making  in  the  whole  the  sum  of 
dollars  and       cents,  and  that  execution  issue,  &.c. 
J.  B.  Justice  of  the  Peace. 

ACTION  OF    BOOK  DEBT. 

i*.   Writ  and  declaration,  husband  and  ~sife  against  the  sam«. 

To  the  Sheriff,  &tc.  Summon  A.  B.  and  C.  B.  his  wife, 
of  in  said  county,  to  appear  before  J.  P.  Justice  of 

the  Peace,  at  &c.  then  and  there  to  answer  unto  E.  F. 
and  G.  F.  his  wife,  of  said  in  a  plea  that  to  the  plain- 

tiffs the  defendants  render  the  sum  of  dollars,  which 

the  said  C.  B.  when  sole  and  unmarried,  owed  to  the  said 
G.  F.  when  sole  and  unmarried,  on  book — as  by  the  plain- 
tiff's book  ready  in  court  to  be  produced,  may  appear ; 
which  said  debt  the  said  C.  B.  never  paid  whilst  she  was 
single,  and  before  her  intermarriage  with  the  said  A.  B.  nor 
hath  the  said  A.  B.  her  husband  paid  the  same,  since  said 
marriage,  although  often  requested  and  demanded,  to  the 
damage  of  the  plaintiffs  the  sum  of  dollars,  to  recover 

which,  &c. 

Plea. 

The  defendants  defend,  plead  and  say  that  the  said  C.  B. 
when  sole  and  unmarried,  did  not  owe  the  said  G.  F.  on 
book,  when  sole  and  unmarried,  in  manner  and  form  a.s  the 
plaintiffs  have  alleged,  and  hereof  for  trial  put  themselves 
on  the  court. 

,3.  Plea  in  an  action  of  book  debt,  -where  the  defendant  doin^ 
a  balance. 

The  defendant  defends,  pleads  and  says,  that  he  does  not 
owe  the  plaintiff  on  book  in  manner  and  form  he  hath  alleg- 
ed, and  further  pleads  and  say.-;  that  the  defendant  is  indebt- 
ed and  in  arrear  to  him  to  balance  book  account  dollars, 
and  hereof  for  trial  puts  himself  on  the  court. 

And  the  plaintiff  does  likewise. 

[If  there  is  a  balance  found  to  be  due  the  plaintiff,  judg- 
ment must  be  given  therefor  and  costs  of  suit.] 

Where  the  defendant  in  his  plea  claims  a  balance  of  more 
than  thirty-five  dollars,  such  plea  is  not  to  be  received,  un- 


less  the  defendant  will  pay  a  duty  of  thirty-four  cents,  and 
enter  into  a  recognizance  with  surety  to  the  adverse  party 
to  remove  said  cause  to  the  county  court,  and  pursue  his 
plea  before  such  court.  If  the  defendant  does  this,  the  jus- 
tice cannot  try  the  cause,  but  must  make  a  record  of  the 
proceedings,  and  on  request  of  the  defendant,  and  at  his 
charge,  a  copy  thereof,  to  be  delivered  to  the  clerk  of  the 
county  court. 

[Plea,  same  as  above,  except  that  the  defendant  demands 
a  balance  of  more  than  thirty-five  dollars.] 

4.  Record  and  recognizance. 
At  a  court  holden  before  me  this         day  of        at 
in  the  county  of  A.  B.  against  C.  D.  in  an  action  of 

book  debt,  wherein  the  said  A.  B.  demands  of  the  said  C. 
D.  the  sum  of  dollars  to  balance  book  accounts  ;  the 

defendant  pleads  and  says  that  he  does  not  owe  the  plain- 
tiff on  book  as  he  hath  alleged,  and  further  pleads  and  says 
that  the  plaintiff  is  indebted  and  in  arrear  to  him  on  hook  to 
balance  book  accounts  the  sum  of  fifty  dollars,  and  move« 
to  have  said  plea  received  and  recorded  ;  and  thereupon 
paid  to  me  for  the  use  of  this  state  a  duty  of  thirty-four 
cents,  and  the  defendant,  aa  principal,  and  J.  H.  of  in 

said  county  as  surety,  recognized  in  the  sum  of  seventy  dol- 
lars to  the  said  A.  B.  the  adverse  party,  to  remove  said 
cause,  to,  and  pursue  his  said  plea  before,  the  next  county 
court,  to  be  holden  at  within  and  for  the  county  of 

and  to  answer  all  damages  in  case  he  fail  to  make 
his  plea  good  ;  whereupon  the  aforesaid  plea  of  the  defend- 
ant was  received  and  recorded. 

J.  P.  Justice  of  the  Peace. 

Recognizance. 

Appeared  before  me  at  in  said  county,  on  the 

day  and  year  above  written,  the  aforesaid  C.  D.  and  J.  H. 
and  acknowledged  themselves  the  said  C.  D.  HS  principal, 
and  the  said  J.  11.  as  surety  holden,  4c  bound  jointly  andsev- 
erallv,  in  a  recognizance  unto  the  aforesaid  A.  B.  in  the 
sum  of  seventy  dollars,  to  be  made  and  levied  from  their 
goods,  estate  and  lands,  or  the  goods,  estate  and  lands  of 
either  of  them,  and  for  want  thereof,  upon  their  bodies, 
in  ca?e  the  said  C.  D.  shall  fail  to  remove  the  afore- 


87 

cause  to,  and  pursue  his  aforesaid  plea  before',   the 
jnty  court  next  to  be  holden  at  in  and  for  the  coun- 

ty of  and  answer  all  damages,  in  case  he  shall  fail  to 

make  his  said  plea  good. 

J.  P.  Justice  of  the  Peace. 

[Where  the  defendant  in  an  action  of  book  debt  neglects 
to  exhibit  his  account  on  trial,  and  shall  afterwards  bring 
an  action  against  such  plaintiff  for  the  recovery  of  his  book 
account,  which  might  have  been  settled  and  adjusted  in  the 
former  action,  he  shall  not  be  allowed  his  cost,  unless  he 
make  it  appear,  to  the  satisfaction  of  the  court,  that  he  had 
no  knowledge  of  the  former  suit,  or  was  inevitably  hinder- 
ed from  appearing  and  exhibiting  his  account.] 

ACTION  OF  DEBT. 

5.  Declaration  on  Bond. 

In  a  plea  that  to  the  plaintiff,  the  defendant  render  the 
sum  of  dollars,  which  to  the  plaintiff  the  defendant 

justly  owes  and  from  him  unjustly  detains  :  Whereupon 
the  plaintiff  declares  and  says,  that  on  the  day  of 
A.  D.  the  defendant,  in  and  by  his  certain  writing,  obli- 
gatory of  the  date  last  aforesaid,  signed  with  his  hand  and 
sealed  with  his  seal,  acknowledged  himself  to  be  holden  and 
firmly  bound  and  obliged  to  the  plaintiff  in  the  sum  of 
dollars,  to  be  paid  to  the  plaintiff  on  demand  ;  as  by  said 
writing  obligatory,  ready  in  court  to  be  produced,  may  ap- 
pear ;  yet  the  defendant  hath  not  paid  said  sum,  but  un- 
justly detains  the  same,  though  often  requested  and  demand- 
ed, to  the  damage,  &c. 

6.  Debt  on  Judgment. 

For  that  at  a  court  holden  before  A.  B.  Justice  of  the 
Peace  for  the  county  of  at  in  said  county,  on  the  day 
of  A.  D.  the  plaintiff,  by  the  consideration  of  said  court, 
recovered  judgment  against  the  defendant  for  the  sum  of 
damages,  and  the  sum  of  costs  of  suit,  as  by  the  records  of 
said  justice,  or  an  authenticated  copy  thereof,  ready  in  court 
to  be  produced,  appears  ;  which  said  judgment  hath  never 
been  satisfied,  reversed  or  annulled,  but  is  now  in  full  force, 
whereby  an  action  hath  accrued  to  the  plaintiff  to  demand 
and  rer  >ver  of  the  defendant  the  aforesaid  several  sums, 
and  seventeen  cents  more  for  the  execution  which  issued 


88 

on  said  judgment,  together  with  the  interest  thereon ;  yet 
the  defendant,  although  often  requested  and  demanded,  hath 
not  rendered  and  paid  the  said  several  .sums  and  the  inter- 
est thereon,  nor  either  of  them,  nor  any  part  thereof,  but 
unjustly  detains  the  same,  to  the  damage  of  the  plaintiff,  &c. 

7.  Declaration  of  Debt  on  an  Award. 
In  a  plea  that  to  the  plaintiff,  the  defendant  render  the 
sum  of         which  he  justly  owes  to  him,  and  from  him  un- 
justly detains  :  Whereupon  the  plaintiff  declares  and  saySj 
that  on  the         day  of  A.  D.         the  plaintiff  and  de- 

fendant mutually  and  amicably  agreed  to,  and  did  submit, 
certain  matters  then  in  controversy  and  dispute  between 
them,  to  the  arbitrement  and  determination  of  A.  B.  and  C. 
D.  to  hear  and  determine  the  same,  and  make  their  award 
thereon,  on  or  before  the  day  of  A.  D.  ;  and 

the  said  A.  B.  andC.  D  having  agreed  to  act  as  arbitrators, 
and  to  examine  and  decide  said  matters,  afterwards,  viz.  on 
the  day  of  A.  D.  the  plaintiff  and  defendant  ap- 

peared before  them,  and  were  fully  heard  with  their  wit- 
nesses and  exhibits  in  the  premises  whereupon  the  said 
arbitrators  did  adjudge,  decide,  and  make  and  publish  their 
award  of  and  upon  the  said  matters  in  controversy  submit- 
ted to  them  as  aforesaid,  that  to  terminate  and  put  an  end 
to  said  controversies,  the  defendant  should  pay  to  the  plain- 
tiff the  sum  of  dollars,  in  a  reasonable  time  ;  yet  the 
defendant  hath  never  paid  said  sum  nor  any  part  thereof, 
although  often  requested  and  demanded,  and  although  a 
reasonable  time  hath  long  since  elapsed  ;  but  refuses  so  to 
do,  and  unjustly  detains  the  same  to  the  damage  of  the 
plaintiff,  &c. 

8.  Debt  on  Recognizance. 

Whereupon  the  plaintiff  declares  and  says,  that  the  said 
defendant,  A.  B.  brought  his  action  of  the  ease  against  the 
plaintiff  by  process,  returnable  before  J.  P.  Justice  of  the 
Peace  for  the  county  of  on  the  day  of  A.  D. 

and  during  the  trial  of  said  cause,  on  the  same  day  the 
defendants  appeared  before  said  justice  and  acknowledged 
themselves  holden  and  bound,  in  a  recognizance  to  the 
plaintiff,  the  said  A.  B.  as  principal,  and  the  snid  C.  D.  as 
surety,  in  the  sum  of  dollars,  to  be  paid  to  him  incase 


the  said  A.  B.  should  fail  to  prosecute  his  said  action  to  ef- 
fect, and  pay  all  damages  in  case  he  fail  to  make  his  plea 
good;  and  the  plaintiff  says  that  afterwards,  viz.  on  the 
same  day  said  justice  J.  P.  gave  judgment  in  said  cause  for 
the  plaintiff  to  recover  of  the  defendant  A.  B.  his  costs  ot 
suit  taxed  at  the  sum  of  dollars  ;  and  thereupon  the 

said  Justice  issued  an  execution  on  said  judgment  for  the 
said  sum  of  and  seventeen  cents  more  for  said  execu- 
tion, and  afterwards,  viz.  on  the  day  of  A.  D. 
the  plaintiff  delivered  said  execution  to  O.  P.  then  and  ev- 
er since  a  constable  of  the  town  of  to  levy  and  collect, 
and  afterwards,  viz.  on  the  day  of  said  constable 
made  return  of  said  execution  into  the  office  of  said  Justice, 
J.  P.  with  an  endorsement  made  thereon,  that  he  could  find 
neither  goods,  chattels,  or  the  body  of  the  said  A.  B.  where- 
on to  levy  the  same,  and  to  his  said  endorsement  he  annex- 
ed his  fees  amounting  to  dollars  cents,  all  of  which 
may  more  fully  appear,  from  the  files  and  records  of  said 
cause,  ready  in  court  to  be  produced.  And  the  plaintiff 
says  that  said  judgment  hath  not  been  reversed,  or  satisfi- 
ed, and  that  said  recognizance  hath  not  been  cancelled  or 
vacated  ;  and  that  A.  B.  did  fail  to  prosecute  his  said  action 
to  effect,  and  that  he  hath  also  failed  to  satisfy  the  dama- 
ges and  costs  sustained  by  the  plaintiff  thereby,  to  the  dam- 
age of  the  plaintiff  the  sum  of  to  recover  which,  &c. 
[Where  a  recognizance  is  given  on  an  attachment,  say  :} 
For  that  on  the  day  of  A.  D.  A.  B.  applied  to 
J.  P.  Justice  of  the  Peace  for  the  county  of  for  a  writ 
of  attachment  in  his  own  favour  and  name,  against  the  plain- 
tiff, and  the  said  Justice,  J.  P.  then  and  there  filled  up  a 
writ  of  attachment  in  the  name  and  behalf  of  the  said  A.  B. 
against  the  plaintiff,  dated  the  day  and  year  laet  aforesaid, 
and  returnable  before  the  said  Justice,  J.  P.  on  the 
day  of  A.  D.  and  thereupon  the  defendant  appeared 
before  said  Justice  J.  P.  and  acknowledged  himself  holder, 
bound  and  obliged  unto  the  plaintiff  in  the  sum  of  dollars, 
to  be  paid  to  him  in  case  the  said  A.  B.  should  fail  to  .pros- 
ecute his  said  suit  to  effect,  and  answer  all  damages  and 
costs  the  plaintiff  might  sustain  if  he  did  not  make  his  plea 
good  ;  and  thereupon  said  Justice  J.  P.  issued  said  writ  of 
attachment  in  due  form  of  law.  And  the  plaintiff  further 
says,  that  afterwards,  viz.  on  the  day  of  A.  D, 
8* 


90 

the  plaintiff  recovered  judgment  in  said  action  before  said 
justice  J.  P.  for  his  costs  of  taxed  and  allowed  by  said 
Justice,  at  dollars  and  cents.  [The  remainder  of 
the  declaration  the  same  as  the  last.] 

9.  Of  Scire  Facias. 

A  writ  of  scire  facias  may  be  brought  upon  a  recognizance 
taken  before  a  Justice  of  the  Peace,  or  upon  a  judgment 
when  the  Justice  dies,  or  is  removed  from  office,  or  where 
either  the  plaintiff  or  defendant  dies,  or  against  a  garnishee 
in  case  of  foreign  attachment,  or  factorising  suit.  Where  a 
scire  facias  is  brought  upon  a  recognizance  or  judgment  of 
a  Justice  of  the  Peace,  it  should  be  signed  by  the  Justice 
rendering  the  judgment,  and  made  returnable  before  him  if 
the  demand  does  not  exceed  thirty-five  dollars.  If  the  de- 
mand exceed  thirty-five  dollars,  the  writ  must  be  signed  by 
the  justice,  and  returnable  to  the  county  court.  If  the 
Justice  rendering  the  judgment  is  dead,  the  writ  may  be 
signed. and  made  returnable  before  any  other  Justice.  On 
recognizance?,  however,  i>  i?  now  most  common  to  bring 
an  action  of  debt,  of  which  we  have  already  given  a  form  of 
declaration. 

Of  Scire  Facias  against  Garnishee. 

[A  foreign  attachment  or  factoi  ising  suit,  is  a  suit  in  com- 
mon form,  at  the  bottom  of  which  there  is  a  direction  to 
the  officer  to  leave  a  copy  with  the  debtor,  agent,  or  factor 
of  the  defendant.  At  the  bottom  of  the  writ  say  as  follows  :] 

And  the  officer  to  whom  this  writ  is  directed,  and  who 
may  serve  the  same,  is  also  commanded  to  leave  a  true  and 
attested  copy  of  this  writ,  with  C.  D.  of  or  at  his  usual 

place  of  abode,  at  least  fourteen  days  before  the  day  the 
t>ame  is  made  returnable,  who  is  the  agent,  trustee,  factor 
and  debtor  of  the  defendant  in  this  writ,  and  has  of  the 
monies  and  goods  of  the  said  defendant,  in  his  hands  ;  and 
you  are  likewise  to  leave  a  like  copy  at  the  last  usual  place 
of  abode  of  the  defendant,  if  he  hath  had  any  in  this  state — 
Plaintiff  recognized  in  the  sum  of  to  prosecute,  &c. 
J.  P.  Justice  of  the  Peace. 

As  we  have  elsewhere  stated,  the  cause  must  be  adjourn- 
ed if  the  defendant  is  not  an  inhabitant  of  this  state,  not  less 
••ban  three,  nor  more  than  nine.,  months.  On  judgment  be- 


91 

fore  the  county  court  in  such  cases  execution  cannot  issue 
until  a  bond  with  surety  is  given  to  refund  the  amount  of 
the  judgment,  if  on  a  petition  for  a  new  trial,  the  court 
should  so  determine  ;  but  this  is  not  necessary  in  judg- 
ments before  Justices  of  the  Peace,  no  bond  being  required 
by  the  statute,  but  the  defendant  within  six  months  after 
his  return  to  this  state,  may  bring  a  petition  to  the  county 
court  for  a  new  trial.  The  return  of  the  execution  unsat- 
:ind  also  that  demand  of  the  same  was  made  of  the 
garnishee  or  the  person  f  ictorised,  and  of  his  refusal  to  pay 
the  execution,  or  expose  the  property  in  his  hands,  lays 
the  foundation  for  a  scire  facias,  against  the  garnishee. 

10.   Declaration  of  Scire  Facias  against  Garnishee. 
To  the  Sheriff,  &c.  Greeting.     Whereas  A.  B.  of 
brought  his  action  of  the  case  on  a  note  against  C.  D.  an  ab- 
sent and  absconding  debtor,,  by  writ  of  attachment  dated  the 

day  of  demanding  thirty-five  dollars,  and  return- 

ahle  before  J.  P.  Justice  of  the  Peace  for  the  county  of 
on  the       day  of  A.  D.        ;  and  which  said  writ  was 

duly  served  on  the  said  C.  D.  by  leaving  a  true  and  an  at- 
tested copy  thereof  at  his  last  usual  place  of  abode  in  this 
state,  and  also,  agreeably  to  the  direction  therein,  a  like 
copy  with  the  officer's  doings  thereon  endorsed,  was  left 
with  E.  F.  of  attorney,  agent,  trustee  and  debtor  to 

the  said  C.  D.  more  than  fourteen  days  before  the  day  said 
writ  was    made  returnable,  and  which  said  writ  was  duly 
returned  to  the  office  of  said  Justice  ;  and  on  the  said 
day  of  A.  D.       the  C.  D.  not  appearing  to  answer  to 

said  action,  the  same  w.is  adjourned  to  the         day  of 
being  more  than  three  months  from  the  day  said  action  was 
made  answerable,  when  the  said  A.  B.  recovered  judgment 
against  the  said  C.  D.  before  said  Justice,  for  the   sum  of 

doll.irs  damages,  and  costs  of  suit,  and  thereupon  said 
Justice  issued  execution  for  said  sums,  with  seventeen  cents 
more  for  said  execution,  dated  the  same  day  ;md  year,  di- 
rected to  the  sheriff  of  the  county  of  his  deputy,  or 
either  constable  of  the  town  of  and  returnable  in  six- 
ty <>  .y*  from  its  date,  and  which  said  execution  the  said  A. 
B.  put  into  the  hands  of  O.  P.  then  and  ever  since  constate 
of  the  said  town  of  who  on  the  day  of  made 
return  of  the  same  into  the  office  of  said  Justice,  J.  P.  with 


his  endorsement  thereon,  that  he  had  made  diligent  search 
for  goods  of  the  said  C.  D.  and  for  his  body,  whereon  to 
levy,  but  could  find  neither,  and  that  on  the  day  of 
he  made  demand  of  the  said  E.  F.  agent,  trustee  and  debt- 
or to  the  said  C.  D.  of  the  sums  contained  in  said  execution, 
and  of  the  monies  and  goods  of  the  said  C.  D.  in  his  hands 
to  satisfy  said  execution  and  his  fees  thereon,  but  the  said 
E.  F.  refused  to  pay  said  execution,  or  to  tuin  out  or  ex- 
pose any  goods  or  estate  of  the  said  C.  D.  whereon  to  levy 
to  satisfy  the  same  ;  and  to  his  said  endorsement  said  con- 
stable annexed  his  fees,  charged  at  ;  ass  by  the  files 
and  records  of  said  justice,  J.  P.,  in  said  cause  may  more 
fully  appear.  And  now  the  plaintiff  says  that  the  said  C. 
D.  at  the  time  of  the  service  of  said  writ,  was  an  absent 
and  absconding  debtor,  and  thatE.  F.  at  the  time  the  copy 
of  said  writ  was  left  with  him,  was  agent,  trustee,  debtor 
and  attorney  to  the  said  C.  D.  and  justly  indebted  to  him  in 
a  greater  sum  th-m  the  amount  of  said  execution  and  the 
officer's  fees  thereon  ;  yet  the  defendant  would  not  pay  the 
same,  nor  expose  or  discover  any  estate,  whereon  the  said 
execution  might  be  levied  and  satisfied,  whereby  the  de- 
fendant hath  become  liable  to  satisfy  the  paid  execution  and 
the  officer's  fees  thereon,  out  of  his  own  estate  ;  and  the 
plaintiff  says  that  said  judgment  hath  never  been  reversed 
or  satisfied,  but  the  same,  with  the  officer's  fees  on  said  ex- 
ecution are  now  justly  due  to  him,  with  the  interest  there- 
on. Wherefore,  by  authority  of  the  state  of  Connecticut, 
you  are  hereby  commanded  to  attach  (or  summon)  the 
goods,  &c.  of  the  said  E.  F.  to  the  value  of  &c.  and  for 
want  thereof  attach  his  body,  and  him  have  to  appear  before 
J.  P.  justice  of  the  peace  for  said  county  of  on  the 
day  of  then  and  there  to  shew  reasons,  if  any  he  have, 
why  judgment  should  not  be  rendered  against  him  in  favour 
of  the  plaintiff,  for  the  amount  of  said  sums  contained  in 
said  execution,  and  the  officer's  fees  thereon  .and  costs  of 
this  suit.  Hereof  fail  not,  but  due  service  and  return  make. 

The  plaintiff  recognized  in  the  sum  of          to  prosecute. 
&c.     Dated  at,  &c. 

J.  P.  Justice  of  the  Peace, 
Plea. 

The  defendant  defend-,  pleads,  and  says,  that  at  the  time 
of  the  issue  of  the  writ  mentioned  in  the  plaintiff's  decla- 


9.J 

ration,  he  was  not  agent,  trustee  or  debtor  of  the  said  C 
D.  and  that  he  had  not  any  monies,  goods  or  estate  of  the 
said  C.  D.  in  his  hands  and  was  not  indebted  to  him  in  any 
sum  whatsoever,  and  hereof  for  trial  puts  himself  on  the 
court  and  prays  to  be  examined  on  oath,  as  is  by  statute 
in  such  cases  provided.  E.  F. 

And  the  plaintiff  does  likewise.  A.  B. 

1 1.  Scire  facias  on  judgment  of  a  justice  who  is  deceased. 

To  the  sheriff  &c.  Whereas  A,  B.  of  on  the 

day  of  recovered  judgment  against 

C.  D.  before  J.  P.  then  justice  of  the  peace  for  the  county 
of  for  the  sum  of  dollars  damages,  and  the 

sum  of  costs  of  suit,  upon  which  said  judg- 

ment execution  was  issued  by  said  justice,  which  has  nev- 
er been  levied,  and  was  returned  unsatisfied,  as  by  the 
files  and  records  of  said  justice  in  said  cause  will  appear. 
And  whereas  since  the  return  of  said  execution,  the  said 
J.  P.  is  deceased,  and  no  execution  can  be  issued  on  said 
judgment,  which  hath  never  been  reversed  or  in  any  oth- 
er way  satisfied.  Wherefore  by  authority  of  the  State  of 
Connecticut,  you  are  hereby  commanded  to  make  the  said 
C.  D.  to  know  that  he  appear  before  Q,.  R.  justice  of  the 
peace  for  the  county  of  on  the  day  of 

then  and  there  to  show  cause,  if  any  he  hath, 
why  the  said  judgment  of  said  justice  J.  P.  deceased, 
should  not  be  affirmed  and  judgment  rendered,  against  the 
said  C.  D.  in  favour  of  the  said  A.  B  for  the  several  sums, 
damages  and  costs,  of  the  aforesaid  judgment,  the  interest 
thereon,  and  costs  of  this  suit.  Hereof  fail  not  &c. 

[Where  the  justice  is  left  out  of  office,  or  has  removed 
out  of  the  State,  allege  that  fact  instead  of  his  being  dead.] 

12.  Scire  facites  against  Administrator  or  Executor. 

To  the  sheriff  &c.     Whereas  A.  B.  of  on  the 

day  of  recovered  judgment  against  C.  D. 

of  before  J.  P.  justice  of  the  peace  for  said  county 

of  for  the  sum  of  damages,  and  the  sum 

of  costs,  and  took  out  execution  for  said  sums,  and 

seventeen  cents  more  for  said  execution,  which  was  dated 

the  same  day  of  A.  D.  ;       and  whereas  since 

the  rendering  of  said  judgment,  and  granting  of  said  exe- 


94 

cution  the  said  A.  B.  died  ;  and  whereas  E.  F.  of 
is  administrator  (or  executor  of  the  last  will,)  of  the  goods 
and  estate  of  the  said  C.  D.  deceased,  and  has  taken  upon 
him  the  burden  of  said  trust.  And  the  plaintiff  says  that 
said  judgment  hath  not  been  reversed,  and  the  same,  and 
said  execution  have  never  been  in  any  way  satisfied,  but 
are  now  justly  due.  Wherefore  you  are  required  to  cause 
the  said  E.  F.  as  administrator  of  the  estate  of  the  said 
C.  D.  deceased  to  know  that  he  appear  before  J.  P.  jus* 
tice  of  the  peace  for  the  county  of  on  the 

day  of  at  then  and  there  to  show  cause,  if  any 

he   hath,  why    judgment  shall   not    be  rendered   against 
the  goods  and  estate  of  the  said  C.  D.  deceased,  delivered 
into  the  hands  of  the  saidE.  F.  as  administrator  as  aforesaid, 
Hereof  fail  not  &c.  J.  P.  Justice  of  the  Peace. 

13.  Scire  facias  by  an  Administrator  or  Executor. 
To  the  sheriff  &c.     Whereas  A.  B.  of  on 

the  day  of  recovered  judgment  against 

C.  D.  before  J.  P.  justice  of  the  peace  for  the  county  of 
for  the  sum  of  damages  and  the  sum 

of  costs  of  suit,  and  took  out  execution  therefor, 

dated  the,,  day  and  year  last  aforesaid  ;  and  where- 

as afterwards  (viz.)  on  the  day  of  the  said 

A.  B.  died ;  and  E.  F.  of  is  executor  of  the  last  will 

and  testament  of  the  said  A.  B.  and  hath  taken  upon  him 
the  execution  of  the  said  trust.  And  the  said  E.  F.  a*,  ex- 
ecutor as  aforesaid  saith  that  said  judgment  hath  never 
been  reversed,  and  that  the  same  and  said  execution  have 
never  been  paid  or  satisfied,  and  thereupon  prays  remedy 
in  the  premises.  Wherefore,  you  are  hereby  commanded 
to  causo  the  said  C.  D.  to  know  that  he  appear  before  the 
said  justice  J.  P.  at  &c.  on  the  day  of  &c. 

then  and  there  to  shew  reason  why  judgment  shall  not  be 
rendered  against  him  in  favour  of  the  said  E.  F.  executor 
of  the  last  will  of  the  said  A.  B.  deceased,  for  the  several 
sums  aforesaid,  amounting  to  ,  the  interest  there- 

on, and  the  costs  of  this  suit.     Hereof  &c. 

J.  P.  Justice  of  the  Peace. 

14.   DECLARATION  of  Covenant. 

A  covenant  differs  from  other  agreements  only  from  its 
being  under  seal.     Actions  of  covenant  are  now  seldom 


brought  except  upon  the  covenants  in  deeds,  which  as 
they  relate  to  lands  are  called  covenants  real,  and  go  with 
the  title.  Although  an  action  for  the  breach  of  covenants 
in  a  deed  cannot  be  brought  before  a  justice  of  the  peace, 
as  the  title  is  directly  brought  in  question,  yet  we  give  a 
form  of  the  declaration. 

In  a  plea  of  covenant  broken,  whereupon  the  plaintiff 
declares,  and  says,  that  on  the  day  of  for 

the  consideration  of  he  purchased  of  the  defend- 

ant a  certain  tract  of  land,  lying  described  as  fol- 

lows :  and  that  the  defendant  on  the  day 

aforesaid,  made,  executed,  and  delivered  to  the  plaintiff  a 
deed  of  conveyance  of  said  lands,  in  which,  among  other 
things,  the  defendant  covenanted  with  the  plaintiff,  that  at, 
and  until  the  ensealing  of  said  deed,  he  the  defendant  was 
well  seized  of  the  premises,  as  a  good  indefeasible  estate 
in  fee — as  by  said  deed  ready  in  court  to  be  shewn,  ap- 
pears. Now  the  plaintiff  says,  that  at  the  time  of  ""execu- 
ting said  deed,  the  defendant  was  not  well  seized  of  the 
premises,  as  an  estate  in  fee,  and  that  he  was  not  owner  of 
said  land,  but  the  same  belonged  to  C.  D.  and  thereupon 
the  plaintiff  says  that  the  defendant  his  said  covenant  not 
regarding  has  wholly  failed  to  keep,  and  perform  the  same, 
though  often  requested,  but  has  broken  the  same,  and  re- 
fused, and  still  does  refuse  to  keep  the  same,  to  the  damage 
of  the  plaintiff. 


CHAPTER  X. 

OF    THE    ACTION    OF    TRESPASS. 


Actions  of  trespass  are  either  for  injuries  done  to  things 
real,  to  things  personal,  or  to  persons.  A  parent  or  master 
may  maintain  trespass  for  an  injury  to  /us  child  or  servant, 
on  the  Around  of  loss  of  service.  The  first  is  commonly 
c  :'  1  trespass  quare  clansum  fregit,  and  the  last  assault 
ittery.  Minors,  and  persons  non  compos  are  li-ible 
f  ii-espasso5,;md  when  they  are  sued,  their  parents/guar- 
dians,  conservators  or  overseers  should  be  notified,  if  they 


- 

have  any,  but  if  they  are  not,  the  court  must  stay  the  pro- 
ceedings and  cause  them  to  be  notified.  Where  a  minor 
has  no  parent  or  guardian,  the  court  will  appoint  a  guardi- 
an to  defend  him  in  the  suit,  otherwise  the  judgment  will 
be  erroneous. 

1.  Declaration  of  Trespass  quare  clttusumfregit. 

In  an  action  of  trespass,  whereupon  the  plaintiff  de- 
clares, and  says,  that  on  the  day  of  he  was 
and  ever  since  has  been  possessed  of  a  certain  tract  of 
land,  lying  in  butted,  and  bounded,  and  described 
as  follows  and  the  plaintiff  says  that  on  the 
day  of  the  defendant  with  force,  and  arms  did 
break,  and  enter  into,  and  upon  said  described  tract  of  land 
of  the  plaintiff,  and  did  tread  down,  consume  and  destroy 
the  herbage  then  and  there  growing,  and  did  cut  down  one 
hundred  trees,  then,  and  there  standing,  and  growing,  to 
the  damage  of  the  plaintiff. 

Where  the  damage  is  done  by  cattle,  the  declaration 
must  charge  the  defendant  with  breaking  into,  and  entering 
upon  the  land  of  the  plaintiff,  and  treading  down,  and  de- 
stroying the  grass,  and  herbage  with  his  cattle,  viz.  horses, 
oxen,  sheep,  kc. 

Plea. 

The  defendant  defends,  pleads  and  says,  that  of  having 
&.  maintaining  his  said  action  the  plaintiff  ought  to  be  barred, 
because  he  says  that  although  true  it  is,  he  entered  on  the 
said  land,  described  in  the  plaintiff's  declaration,  yet  he 
says  he  had  a  good  right  so  to  do  ;  that  he  is  the  owner  of 
said  land,  and  at  the  time  of  the  acts  complained  of,  the 
title  of  said  land  was  in  the  defendant,  and  that  ever  since 
the  title  to  said  land  hath  been  and  is  still  in  the  defendant, 
which  he  is  ready  to  verify,  and  hereof  prays  judgment. 
Defendant  for  himself. 

Record. 

At  a  court  holden  &c.  A.  B.  against  C.  D.  action  of 
trespass,  whereupon  the  plaintiff  declares  and  says  that  on 
the  'i-y  of  he  was  seized  and  possessed 

of  a  certain  piece  of  land,  bounded  and  that 

afterwards  (viz  )  on  the  day  of  the  defendant 


9? 

with  force  and  arms  entered  into  and  up«fi  said  piece  of 
land,  trod  down  the  herbage  and  cut  and  carried  away  one 
hundred  trees,  then  and  there  standing  &c.  ;  to  which,  the 
defendant  pleads  and  says  that  true  it  is,  he  entered  upon 
•aid  land  and  cut  said  trees,  but  he  further  says  that  at  that 
time  and  ever  since  he  was  owner  of  said  land  and  that  the 
title  thereof  was  then  and  is  still  in  the  defendant,  which 
he  is  ready  to  verify  ;  and  thereupon  the  defendant  with 
surety  entered  into  a  recognizance  in  the  sum  of 
dollars  to  the  plaintiif  conditioned  that  he  would  enter  said 
cause  and  prosecute  his  said  plea  to  effect  in  the  next 
county  court  of  the  county  of  within  which  the  said 

land  lies,  and  pay  all  damages  and  costs,  if  he  fail  to  make 
bis  plea  good.  J.  P.  Justice  of  the  Peace. 

Recognizance. 
H  county,  ss.  II  , 

Appeared  before  me  on  the  day  and  year  above  written, 
C.  D.  and  E.  F.  and  acknowledged  themselves  jointly  and 
severally,  the  said  A.  B.  as  principal  and  the  said  E.  F.  u.~ 
surety  to  be  indebted  and  bound  and  holden  unto  the  afore- 
said C.  D.  in  the  sum  of  dollars  to  be  paid,  in 
case  the  said  A.  B.  shall  neglect  and  fail  tu  enter  the  afore- 
said cause  in  the  docket  of  the  county  court  to  be  holden 

at  within  and  for  the  county  of 

and  prosecute  his  aforesaid  plea  to  effect,  and  pay  all  the 
damages  and  costs,   the  said  A.  B.  plaintiff  in  said  action, 
may  sustain  in  case  he  fail  to  make  his  said  plea  good. 
J.  P.  Justice  of  the  Peace. 

If  the  defendant  after  pleading  title,  refuses  to  recognize 
with  surety,  the  action  must  proceed,  and  his  plea  be  rejec- 
ted by  the  court  ;  yet  if  he  refused  to  plead  anv  other, 
judgment  may  be  given  against  him  on  nih.il  dicit. 

2.  Declaration  of  Trespass  to  personal  property. 

In  an  action  of  trespass,  whereupon  the  plaintiff  declare;- 

and  says,  that  on  the  day  of  he  was  the 

lawful   owner  of  a  certain  bay   horse,  six  years  old,    of 

'  the    price    and    value   of    one  hundred    dollars,    and   the. 

defendant  on  said  day,  did  with  force,  and  arms,  take  and 

<-arry  au-uv  said  horse  out  of  the   possession  of  the  plain- 

i7 


tiff,  to  some  place  unknown,  whereby  the  plaintiff  has  whol- 
ly lost  the  same,  to  his  damage. 

In  an  action  of  trespass,  whereupon  the  plaintiff  declares 
and  says,  that  the  defendant,  on  the  day  of  at 

did  with  force  and  arms,  break  into  the  dwelling 
house  of  the  ^plaintiff,  and  did  him  assault  and  beat,  and 
unlawfully  imprison  for  the  space  of  twenty-four  hours, 
and  did  with  force  take,  and  carry  away  his  goods  and  chat- 
tels, viz.  one  thousand  hats  of  the  price,  &  value  of  one  thou- 
sand dollars,  &,c.  whereby  the  plantiff  lost  the  same,  to  his 
damage. 

Plea. 

And  the  defendant  defends,  pleads  and  says,  that  he  is 
not  guilty  in  manner  and  form  the  plaintiff  hath  alleged, 
and  hereof  for  trial  puts  himself  on  the  court. 

A.  B. 

And  the  plaintiff  does  likewise.  C.  D. 

3.  Declaration  of  Assault   and  Bo.ttery. 
In  a  plea  of  trespass,  whereupon  the  plaintiff  declares 
and  says,  that  on  the  day  of  at  he 

then  and  there  being  in  the  peace  of  this  State,  the  defend- 
ant with  force  and  arms.  viz.  with  fists  and  clubs,  and  with 
great  violence,  did  an  assault  make  upon  the  body  of  the 
plaintiff  and  him  beat  and  strike  many  blows,  whereby  he 
was  greatly  injured,  and  other  injuries  and  enormities  the 
defendant  then  and  there  did  and  committed  upon  the  per- 
son of  the  plaintiff,  against  the  peace,  and  to  his  damage 

dollars  &c. 

4.  Declaration  of  False  Imprisonment. 
In  an  action  of  trespass,  whereupon  the  plaintiff  declares 
and  says,  that  the  defendant  on  the  at  did 

with  force  and  arms  an  assault  make  upon  the  body  of  the 
plaintiff,  and  him  did  beat  and  wound,  and  unlawfully  im- 
prison, and  detained  and  confined  him  in  prison  for  the 
space  of  twenty-four  hours,  and  then  and  there  did  to  him 
many  other  injuries,  against  the  peace  and  to  his  damage 

5.   Declaration — Trespass  for  Debauching  the  Plaintiff's 

Daughter. 

In  an  action  of  trespass,  whereupon  the  plaintiff  declares 
rind  «nvs.  that  the  defendant  on  the  day  of 


und  at  divers  other  times  since,  did  with  force  and  arms, 
break  and  enter  into  the  house  of  the  plaintiff,  and  assaults 
make  upon  the  body  of  A.  B.  the  plaintiff's  servant  and 
daughter,  under  the  age  of  twenty-one  years  ;  and  the  de- 
fendant did  then  and  there  seduce  and  debauch  the  said 
A.  B.  and  carnally  know  her,  and  get  her  with  child.  By 
which  the  plaintiff  lost  the  company  and  service  of  his  said 
servant  and  child  for  a  long  time,  viz.  from  and 

was  put  to  great  labour  and  trouble,  and  was  forced  to  ex- 
pend one  hundred  pounds  in  maintaining  and  taking  care  of 
her  lying  in  of  said  child,  to  his  damage. 

ACTION    OF    TROVER. 

T  roverjis  brought  for  the  recovery  of  the  value  of  person 
al  property,  which  was  either  unlawfully  taken,  or  is  unlaw- 
fully detained  by  the  defendant.  Where  property  ha* 
been  found  or  loaned,  and  demand  made  of  the  same  by 
the  owner  and  a  refusal  to  deliver  it  up,  trover  may  b«? 
brought. 

6.  Declaration — Trover. 

In  a  plea  of  the  case,  whereupon  the  plaintiff  declares, 
and  says,  that  on  the  day  of  he  .was  pos- 

sessed of   ten  yards  of  broadcloth,  of  the  value  of  ten 
pounds  lawful  money,  which  was  his  own  proper  estate, 
and  being  so  thereof  possessed,  he  afterwards  on  the 
day  of  lost  said  broadcloth,  out  of  his  hands  and 

possession,  which  afterwards  on  the  day  of 

came  into  the  hands  and  possession  of  the  defendant,  by 
finding :  and  the  plaintiff  says,  that  the  defendant  well 
knew  that  the  said  cloth  belonged  to  the  plaintiff,  but  con- 
triving, and  intending  to  deceive,  and  defraud  him,  he  the 
defendant  has  at  all  times  neglected  and  refused  to  deliver 
said  cloth  to  the  plaintiff,  though  often  requested,  particu- 
larly on  the  day  of  and  the  defendant  af- 
terwards on  the  day  of  converted,  and  dis-' 
posed  of  the  same,  to  his  own  use,  to  the  damage  of  the 
plaintiff. 

7.  Declaration  in  the  action  of  Slander. 
In  a  plea  of  the  case,  whereupon  the  plaintiff  declares 
and  says,  that  from  his  youth  to  the  present  time,  he  hae 
ever  sustained  a  good  character,  and  has  never  been  guil- 


100 

ty  of  the  crime  of^theft,  yet  the  defendant  minding  and 
intending  to  injure  and  destroy  the  character  of  the  plain- 
tiff, did  on  at  maliciously,  falsely,  and  openly, 
utter  and  publish  in  the  hearing  of  sundry  citizens  of  this 
state,  the  following  false,  and  scandalous  words  of  and  con- 
cerning the  plaintiff  viz.  A.  B.  (meaning  the  plaintiff)  is  a 
thief  and  has  stolen  my  horse  (meaning  the  defendant's 
horse)  and  the  plaintiff  says  that  by  reason  of  the  defend- 
ant's speaking  said  words,  he  has  been  greatly  injured  in 
his  good  name  and  reputation,  has  been  put  to  great  trouble 
and  expense  and  exposed  to  a 'criminal  prosecution  for  the 
crime  of  theft,  which  is  to  his  damage. 

8.  Declaration — Malicious  Prosecution. 
In  a  plea  of  the  case,  whereupon  the  plaintiff  declares 
and  says,  that  he  has  from  his  youth  to  the  present  time, 
sustained  a  good  character,  has  never  been  guilty  of 
perjury,  of  which  the  defendant  was  not  ignorant,  but  con- 
triving and  maliciously  intending  to  injure  the  character  of 
the  plaintiff,  and  bring  him  to  public  scandal  and  disgrace, 
did  falsely  and  maliciously  and  without  any  reasonable,  or 
probable  cause  whatever,  on  the  day  of 

cause  and  procure  the  plaintiff  to  be  informed  against,  and 
indicted  for  the  crime  of  perjury,  in  the  following  manner 
(recite  the  information  or  indictment  -with  the  whole  proceed- 
ings and  the  acquitat).  And  the  plaintiffsays  that  he  was  in- 
nocent of  said  crime  of  perjury  charged  in  said  information, 
yet  the  defendant  well-knowing  the  innocence  of  the  plain- 
tiff, but  intending  to  injure  him  did  falsely,  and  maliciously 
and  without  any  reasonable  or  probable  cause  whatever, 
cause,  and  procure  the  plaintiff  to  be  informed  against, 
indicted  and  prosecuted  for  the  crime  of  perjury  as  afore- 
said, whereby  the  plaintiff  has  been  greatly  injured  in  his 
reputation,  and  has  been  put  to  great  trouble  and  cost  in  his 
netessary  defence  ;  to  his  damage. 

OF    TRESPASS    ON     THE    CASE. 

This  action  is  brought  either  for  misfeasance  or  a  non- 
feasance  ;  a  wrongful  act  not  immediately  and  directly  in- 
jurious, for  if  so,  trespass  is  the  proper  action,  but  only 
injurious  in  its  consequences ;  and  for  any  omission  or  of 
what  the  law  requires  a  person  to  do.  This  action  is  a 
^uost  extensive  remedy,  and  is  brought  against  all  officers* 


101 

agents,  trustees,  &c.  whether  public  or  private,  for  neglect 
of  duties  ;  and  is  the  usual  remedy  in  cases  of  warranties, 
&c.  The  doctrine  of  implied  warranty  in  the  sale  of  per- 
sonal property,  has  been  adopted  in  this  State.  So  that  if 
a  person  sells  a  horse  or  other  article  of  personal  property, 
for  a  fair  price,  and  as  for  a  sound  horse,  the  law  implies 
a  warranty  that  it  is  sound.  In  such  case  it  is  not  necessa- 
ry to  prove  any  deeeit,  or  that  the  vendor  knew  the  horse 
was  unsound,  for  he  is  liable  if  he  did  not  know  it.  iWhere 
a  person  knows  a  horse  to  ba  unsound,  and  sells  it,  rep- 
resenting it  to  be  sound,  or  without  such  representation, 
if  he  neglects  to  inform  the  purchaser  of  its  defects,  he  is 
liable  on  the  ground  of  deceit  or  fraud.  In  an  action  on 
an  implied  warranty  the  declaration  will  be  the  same  as  if 
it  was  an  express  warranty.  In  all  cases  when  a  person 
sells  an  article  of  personal  property  the  law  implies  a  war- 
ranty that  he  is  owner  of  it. 

9.  Declaration  of  Trespass  on  the  case  for  Warranty. 

In  a  plea  of  the  case  whereupon  the  plaintiff  declares 
and  says,  that  on  the  day  of  he  purchased 

of  the  defendant,  a  certain  horse  and  paid  him 

therefor,  the  valuable  consideration  of  one  hundred 
dallars,  and  the  plaintiff  says,  that  at  the  time  of  the 
sale  and  delivery  of  said  horse,  the  defendant  did  affirm, 
declare  and  warant  to  the  plaintiff  that  the  same  was  sound, 
wind  and  limb,  and  free  from  any  defect  or  disease  what- 
ever, and  the  plaintiff  saj'S  that  at  the  time  of  said  sale,  de- 
livery and  warranty  of  said  horse,  the  same  was  disorder- 
ed and  defective,  and  for  a  long  time  before,  and  then  had 

a  certain  incurable  disease,  called whereby  said  horse 

was  rendered  of  no  value,  and  the  plaintiff  has  wholly  lost 
the  same  :  and  the  plaintiff  says  that  the  defendant  has  not 
kept  his  said  warranty,  but  has  broken  the  same, 
to  his  damage,  &c. 

10.  Declaration  on  the  case  for  Fraud. 
In  a  plea  of  the  case,  whereupon  (he  plaintiff  declares 
and  says,  that  on  the  day  of  he  purchased 

of  the  defendant  a  certain  horse — and  paid  him  therefor, 
the  valuable  consideration  of  one  hundred  dollars,  and 
the  plaintiff  .-ays,  that  he  purchased  said  hor.-e  as,  and 
for  a  sound  horse,  and  that  the  defendant  at  the  time  of  said 


102 

sale  and  delivery,  did  affirm  and  declare  to  the  plaintiff, 
that  said  horse,  was  sound  wind  and  limb,  and  free  from 
any  defect  or  disease  whate?er.  And  the  plaintiff  further 
says,  that  at  the  time  of  said  sale  and  delivery,  said  horse 
was  unsound,  and  then  and  for  a  long  time  before,  had  an 

incurable  disease,  called which   was  then  well  known 

to  the  defendant,  but  wholly  unknown  to  the  plaintiff  :  and 
that  the  said  disease  has  rendered  said  horse  of  no  value, 
and  that  the  plaintiff  has  wholly  lost  the  same,  to  his  dam- 
age, &c. 

1 1.  Declaration  against  an  officer  for  neglecting  to  levy  or 
return  an  Execution. 

To  the  sheriff  &c.       To  summon  O.  P.  of 
by  reading  this  writ  in  his  hearing  or  leaving  a  copy  with 
him  or  at  his  usual  place  of  abode  at  least  fourteen  days  before 
the  same  is  made  returnable,  to  appear  &.c.  &c. 

In  a  plea  of  the  case  for  that,  the  plaintiff  declares  and 
savs.  thnt  on  the  day  of  he  recovered  judg- 

ment before  J.  P.  justice  of  the  peace  for  said  county  of 

in  his  own  name  and  favour  against  A.  B.  of 
for  the  sum  of  damages,  and  the  sum  of  costs  of  suit, 
and  thereupon  took  out  an  execution  for  said  sums,  with 
seventeen  cents  more  for  the  same,  and  which  said  execu- 
tion was  dated  the  day  and  year  last  aforesaid,  directed  to 
the  sheriff  of  the  county  of  his  deputy  or  either 

constable  of  the  town  of  in  the  county  last  aforesaid, 

to  serve,  and  return,  and  was  returnable  within  sixty  davs 
next  coming  from  the  date  thereof;  arid  was  all  in  due  form 
of  law  signed  by  the  said  justice  J.  P.,  as  by  the  files 
and  records  of  said  justice  may  appear  ;  and  afterwards, 
viz.  on  the  said  day  of  the  plaintiff  delivered  said 

execution  into  the  hands  of  the  defendant  then  and  ever 
since  constable  of  said  town  of  to  levy  and  collect, 

and  return  the  same  execution  according  to  law  ;  yet  the 
plaintiff  says  that  the  defendant  neglecting  and  disregarding 
his  duty  did  not  serve,  levy  or  collect  said  execution  or 
return  the  same  into  the  office  of  said  justice  J.  P.  withiu 
the  life  of  the  same  execution.  And  the  plaintiff  says  that 
said  judgment  hath  not  been  reversed,  and  that  the  same 
and  said  execution  are  wholly  unsatisfied,  and  now  justly 
due,  pnd  that  by  means  of  the  premises  he  has  been  injur- 
ed and  damaged  the  sum  of  dollars,,  to  recover 
which  with  costs  &c. 


103 

;  :.   Where  the  officer  makes  a  false  return  within  the  sixty 
days. 

[The  same  as  the  above   until  alleging  the  delivery  of 
the  execution  into  the  hands  of  the  defendant,  then  say  :] 

And  afterwards  viz.  on  the  day  of  the  de- 

fendant returned  said  execution  into  the  office  of  said  jus- 
tice J.  P.  with  his  endorsement  thereon  made  that  he  had 
demanded  said  execution  and  his  fees  of  the  said  A.  B. 
who  had  neglected  and  refused  to  pay  the  same,  and  that 
he  had  made  diligent  inquiry  and  search  for  goods  and  es- 
tate of  the  said  A.  B.  whereon  to  levy  to  satisfy  said  exe- 
cution but  could  find  none  within  his  precincts  ;  and  also 
that  he  had  made  like  search  for  the  body  of  the  said  A. 
B.  wheron  to  levy,  but  could  not  find  the  same  ;  as  by  the 
files  &-  records  of  said  justice  J.  P.  in  said  cause  may  appear. 
And  the  plaintiff  says  that  the  said  return  and  endorsement  of 
the  defendant  are  false  and  untrue,  and  that  during  the  life  of 
said  execution  and  whilst  the  same  was  in  the  defendant's 
hands  to  levy  and  collect  as  aforesaid,  the  said  A.  B.  was 
in  possession  of  goods  and  estate  liable  to  be  taken  on  ex- 
ecution, within  the  said  precincts  of  the  defendant,  of 
greater  value  than  the  damages  and  costs  of  said  execution 
and  sufficient  to  have  satisfied  the  same,  which  might  have 
been  found,  taken  and  levied  on,  with  due  diligence.  And 
the  plaintiff  says  that  said  judgment  hath  not  been  revers- 
ed or  satisfied,  or  said  execution  satisfied  or  paid,  and  that 
by  the  aforesaid  wrong  doings  of  the  defendant,  he  hath 
lost  his  remedy  for  the  collection  of  said  execution  and 
judgment  to  his  damage,  &c. 

13.  For  not  taking  property  on  attachment. 

In  a  plea  of  the  case  for  that,  on  the  day  of 

the  defendant  prayed  out  a  writ  of  attachment  in  his  own 
name  and  behalf,  against  C.  D.  dated  the  day  and  year  last 
aforesaid,  signed  by  J.  P.  justice  of  the  peace  for  the 
county  of  and  directed  to  the  sheriff  or  his  deputy 

or  either  constable  of  the  town  of  them  command- 

ing  to  attach  to  the  value  of  thirty-five  dollars  of  the  goods 
or  estate   of  said  C.  D.  and  for   want  thereof  attach   his 
body  ;  and  returnable  before  said  justice  J.  P.  on  the 
day  of  at  in  said  county,  and  demanding 

thirty  five  dollars  damages  ;  and  afterwards,  viz.  on  the 
said  day  of  the  plaintiff  delivered  said  writ  of 

attachment  into  the  hands  of  the  defendant  then  and  ever 


104 

since  a  constable  of  said  town  of  to  serve  and  return 

acccording  to  law.  And  the  plaintiff  says  that  afterwards, 
viz.  on  the  day  of  the  defendant  returned  said 

writ  into  the  office  of  said  justice  J.  P.  with  his  endorse- 
ment thereon  made,  that  he  could  not  find  any  goods  or 
estate  of  the  said  C.  D.  whereof  to  attach,  he  having  made 
diligent  search  within  his  precincts,  and  that  for  want 
thereof  he  attached  the  body  of  the  said  C.  D.  and  took 
sufficient  bail  for  his  appearance  at  court.  And  the  plain- 
tiff says  that  said  return  and  endorsement  were  false  and 
untrue,  and  that  the  said  C.  D.  was  at  the  time  of  the  ser- 
vice and  return  of  said  attachment,  possessed  of  goods 
and  estate  to  a  greater  value  than  thirty-five  dollars,  liable 
to  have  been  attached  and  taken  for  debt,  within  the  pre- 
cincts of  the  defendant,  which  might  have  been  found  and 
attached,  with  due  diligence  and  enquiry.  And  the  plaintiff 
says  that  afterwards  on  the  day  of  he  recov- 

ered judgment  against  the  said  C.  D.  in  said  action  before 
said  justice  J.  P.  for  the  sum  of  damages  and  the  sum 
of  costs  for  which  sums  execution  was  then  and 

there  issued  in  due  form,  and  for  seventeen  cents  more, 
which  afterwards,  viz.  on  the  day  of 

was  put  into  the  hands  of  the  defendant  to  levy  and  collect, 
who  after.vards  and  whilst  said  execution  was  in  life  and 
after  having  made  demand  of  the   same,  for  want  of  goods 
and  estate  of  the  said  C.  D.  levy  the  same  on  his  body  and 
him  committed  to  the  keeper  of  the  gaol  in  the  county  of 
and  returned  said  execution  with  an  endorse- 
ment of  his  said  doings  thereon  ;  and  afterwards,  on  the 
day  of  the  said  C.  D.  had  duly  administerd 

to  him  the  oath  by  law  provided  for  poor  debtors  in  pris- 
on and  was  thereupon  discharged  from  confinement  in 
said  gaol  on  said  execution.  And  the  plaintiff  says  that 
said  judgment  hath  never  been  reversed  or  satisfied,  and 
that  said  execution  hath  never  been  paid  or  otherwise  satisfi- 
ed, than  by  the  aforesaid  levy,  and  that  by  the  said  wrong 
doings  of  the  defendant,  he  hath  wholly  lost  said  judgment, 
and  the  officer's  fees  on  said  execution,"charged  at 
to  his  damage  the  sum  of 

[In  case  of  the  default  of  a  deputy  sheriff  a  suit  may  br 
brought  against  him  or  the  sheriff.] 


J4.  Declaration  in  case  for  injuries  arising  froia  negligence, 
In  a  plea  of  the  case  whereupon  the  plaintiff  declares 
and  says,  that  the  defendant  on  the  day  of 

instant,  long  before,  and  ever  since  was,  and  hath 
been  an  inn-keeper  or  licensed  public  taverner  in  said 
and  as  such  hath  been  used  and  wont  to  enter- 
tain guests  and  their  horses  for  certain  hire  :  whereupon 
the  plaintiff  declares  and  says,  that  the  plaintiff  on  the  day 
aforesaid,  at  aforesaid,  being  a  guest  at  the 

defendant's  house,  by  him  the  defendant  entertained  as 
taverner  aforesaid,  he  the  plaintiff  then  and  there  deliver- 
ed to  the  defendant  to  feed  and  keep  his  the  plaintiff's  cer- 
tain horse,  of  the  price  of  thirty-five  dollars  lawful  mon- 
ey, and  also  a  good  saddle  and  bridle  to  the  value  of  three 
dollars  lawful  money,  which  the  defendant  received  and 
for  his  certain  reasonable  hire  to  be  paid,  undertook  safe- 
ly to  keep  and  re-deliver  to  the  plaintiff  whenever  thereto 
requested.  Yet  nevertheless,  the  defendant  so  carelessly 
and  negligently  looked  after  said  horse,  saddle  and  bridle, 
as  that  by  the  defendant's  so  negligently  and  carelessly 
keeping  as  aforesaid,  the  plaintiff's  said  horse,  soon 
after  the  said  day,  strayed  away  out 

of  the  defendant's  keeping  and  custody,  and  awavfrom  the 
plaintiff  and  out  of  his  reach  and  knowledge  ;  and  the  said 
saddle  and  bridle  were  also  lost,  contrary  to  the  defendant's 
undertaking  and  trust  as  aforesaid.  And  thereby  the  plain- 
tiff is  damnified  and  made  worse  as  he  saith,  the  sum  of 
lawful  money,  and  therefor  and  for  costs 
he  brings  this  suit.  Fail  not,  dated,  &c. 

OF    THE    ACTION'    OF    REPLEVIN. 

Replevin  is  a  remedy  to  regain  the  possession  of  goods 
which  have  been  wrongfully  distrained  or  taken,  and  is 
the  proper  action  to  regain  the  possession  of  beasts  which 
have  been  impounded,  and  property  attached.  In  replev- 
in of  cattle  the  plaintiff  alleges  them  to  have  been  wrong- 
fully taken,  and  summons  the  defendant  to  appear  before 
the  court  and  answer  to  a  plea  of  trespass  for  wrongfully 
taking  and  unjustly  impounding  his  beasts.  The  defendant 
if  he  admits  and  justifies  the  taking  by  a  claim  of  title  to 
the  land  is  said  to  make  avowry,  which  is  in  substance,  a 
declaration,  setting  forth  his  right  or  title,  and  the  trespass 
•f  the  plaintiff's  beasts,  and  claiming  damage. 


*i  106 

1  o.   Writ  and  Declaration  of  replevin  of  beasts  impounded. 
To  the  sheriff  of  F.  &c.  Greeting. 

By  authority  of  the  state  of  Connecticut,  you  are  here- 
by commanded,  justly  and  without  delay,  to  cause  to  be 
replevied  to  T.  C.,  of  S.  his  beasts,  to  wit,  now  dis- 

trained or  impounded  by  S.  H.  of  N.,  and  by  him  unjustly 
detained,  as  it  is  said  :  and  you  are  to  summon  the  said 
S.  H.  to  appear  before  J.  P.  justice  of  the  peace  for  the 
county  of  on  the  day  of  A.  D. 

then  and  there  to  answer  unto  the  said  T.  C.,  in  a  plea  oi' 
trespass,  wherein  the  said  T.  C.  complains,  that  the  said 
S.  H.,  on  the  day  of,  &c.  at  M.,  in  a  certain 

place,  called  "&c.  took  the  said  beasts,  that  is  to 

say,  and  them  unjustly  impounded  and  detained 

as  aforesaid,  until  this  time  ;  which  is  to  the  damage  of 
the  said  T.  C.,  as  he  saith,  the  sum  of  dollars, 

and  therefor    brings  this  suit,  &c.  (the  said  T.  C. 

having  given  bond  according  to  law.)  Hereof  fail  not,  and 
make  due  return  of  this  writ,  with  your  doings  thereon, 
&c. 

Dated  &,c.  J.  P.  Justice  of  the  Peace. 

The  justice  who  issues  a  writ  of  replevin  should  take  a 
bond  of  the  plaintiff  with  surety,  or  he  will  be  liable  him- 
self, which  should  be  annexed  to  the  writ. 

Bond,  or'Recognizance. 

You,  A.  B.  and  C.  D.  of  acknowledge  yourselves, 
jointly  and  severally,  bound  to  E.  F.  of  in  a  recog- 

nizance of  dollars,  that  G.  H.  of  shall  prosecute  the 
writ  of  replevin,  he  hath  now  taken  out  against  the  said  E. 
F.  at  the  next  county  court,  to  be  holden  at  on 

the         Tuesday  of  next,  (or,  before  the  justice  of 

the  peace  to  whom  the  same  is  returnable,)  to  full  effect ; 
and  in  case  he  make  not  his  plea  good,  satisfy  such  demands 
and  dues  as  the  said  E.  F.  shall  recover  against  him. 

Avowry. 

And  the  said  C.  D.  comes  into  court  and  defends  the 
force  and  inquiry,  &c.  and  avows  the  taking  the  said  beasts 
in  the  place  alleged  in  the  plaintiff's  declaration,  and  avers 
that  said  place  where  said  beasts  were  taken  is  in  and  a  part 
of  a  certain  parcel  of  land  situated  at  W  containing 

acres,  and  bounded  which  said  parcel  of  land 


iui 

.ras  at  the  time  said  beasts  were  taken,  the  soil  and  free- 
hold, and  in  the  possession  and  occupation  of  the  said  C.  D. ; 
and  he  further  says  that  said  beasts  at  the  time  they  were 
taken  at  the  place  aforesaid,  were  depasturing  the  grass, 
and  doing  damage  on  the  avo want's  said  soil  and  freehold, 
and  for  the  doing  which  said  damage,  the  said  C.  D.  avow? 
the  taking  said  beasts,  which  he  is  ready  to  verify,  and 
prays  judgment  for  the  damage  done  to  his  said  land  by  the 
plaintiff's  said  beasts,  in  manner  aforesaid,  which  he  says  i? 
dollars,  together  with  costs  and  charges. 

C.  D. 

Plea  in  bur  of  the  dvowry. 

And  the  said  A.  B.  says  that  the  said  C.  D.  ought  not  to 
avow  the  taking  of  said  beasts,  as  he  has  alleged,  because  he 
says  that  said  beasts  entered  into  &  upon  said  piece  of  land  de- 
scribed by  the  avowant,  from  an  adjoining  lot  of  land  belong- 
ing to  the  plaintiff,  through  and  over  that  part  of  the  fence 
dividing  the  said  lot  of  the  plaintiff  from  the  said  lot  of  the 
avowant,  belonging  to,  and  which  is  the  fence  of,  the  said 
C.  D.  and  his  duty  to  keep  and  maintain  the  same  ;  and  that 
the  said  fence  of  the  avowant  through  which  said  beasts 
broke  and  entered,  was  not  at  the  time  said  beasts  broke 
and  entered  through  the  same,  a  good  and  substantial  fence, 
five  rails  high,  or  a  stone  wall  four  feet  high,  well  erected, 
or  equivalent  to  such  five  rail  fence,  or  stone  wall  ;  but 
said  fence  was  weak  and  defective,  from  which  cause  the 
plaintift's  beasts  broke  through  the  same,  and  entered  4ipon 
the  avowant's  said  land,  from  whence  they  were  unjustly 
taken,  impounded  and  detained,  until  delivered  and  repla- 
ced by  the  plaintiff's  said  writ ;  all  which  he  is  ready  to 
verify,  and  he  prays  that  damages  for  the  unjust  taking  and 
detention  of  his  said  beasts,  and  costs  may  be  adjudged  to 
him.  A.  B. 

Replication'. 

And  the  said  avowant  replies  to  the  said  plea  in  bar  of 
the  s:\id  A.  B.  and  says  that  the  part  of  the  division  fence 
between  the  said  lot  of  the  plaintiff  and  that  of  the  avowant, 
whereon  said  beasts  were  taken,  belonging  to  the  said  A. 
B.  is  not  a  five  rail  fence,  or  a  stone  wall  four  feet  high, 
or  equivalent  thereto,  and  that  the  said  beasts  broke  and 
tered  on  the  said  land  of  the  said  C.  D.  through  his  the 
A.  B.'s  part  of  said  fence,  in  consequence  of  its  defect- 


108 

iveness,  without  that,  that  the  said  part  of  said  division  fence 
belonging  to  the  avowant  at  the  time  said  beasts  entered  on 
said  land  and  were  taken,  was  not  a  five  rail  fence,  or  a 
Jtone  wall  four  feet  high,  or  equivalent  thereto,  and  with- 
out that,  the  said  beasts  broke  and  entered  into  and  upon 
the  said  land  of  the  avowant  where  they  were  taken,  through 
and  over  the  said  C.  D.'s  part  of  said  division  fence,  be- 
tween said  lots  of  land,  and  hereof  puts  himself  on  the 
court.  C.  D. 

And  the  plaintiff  does  likewise.  A.  B. 

Record. 
H  county,  ss.     H         ,        day  of          A.  D. 

At  a  court  holden  before  me,  A.  B.  against  C.  D.  in  au 
action  of  Replevin  of  certain  beasts  of  the  said  A.  B.  alleged 
by  him  to  have  been  unlawfully  taken  and  impounded  by 
the  said  C.  D.  who  avows  the  taking  of  said  beasts  damage 
feasant  on  a  certain  parcel  of  land  situated  in  the  soil 

and  freehold  belonging  to  him  the  Sfiid  C.  D.  as  he  avers, 
and  to  which  avowry  the  said  A.  B.  pleads  in  bar  that  said 
beasts  broke  and  entered  on  the  said  land  of  the  avowant, 
through  and  over  a  part  of  the  fence  dividing  and  separa- 
ting the  said  lot  of  the  avowant  from  an  adjoining  lot  of  the 
plaintiff,  belonging  to  the  said  C.  D.  and  that  the  same  was 
noi  a  five  r  ul  fence  or  a  stone  wall  four  feet  high  or  equiv- 
alent thereto  ;  and  the  said  avowant  replies  to  the  plaintiffs 
pica  in  bar,  and  traverses  the  facts  or  allegations  therein,  of 
the  insufficiency  of  the  avowant's  said  fence,  and  of  said 
'  having  entered  through  the  same,  and  puts  himself  on 
the  court  for  trial  ;  and  the  plaintiff  doth  likewise,  as  by  the 
pleadings  of  said  parties  on  file  more  fully  appears  ;  and 
having  fully  heard  the  parties  with  their  evidences,  I  do 
find  that  the  facts  and  allegations  contained  in  the  plaintiff's 
said  olea  in  b;tr  are  true,  whereupon  it  is  considered  that 
the  said  A.  B.  recover  of  the  said  C.  D.  the  cum  of 
damage.?,  for  the  unlawful  taking  and  detention  ofthe  plain- 
tiit" -  ^-idbeasis,  and  his  costs  taxed  at  4'C. 

[If  the  issue  is  found  for  the  avowant,  say  :] 
I  do  find   that  the  facts   and  allegations   contained   in   the 
plaintiff's  said  plea   in  bar  are  not  true,  whereupon   it  is 
<-v>;i-ir!ered  th;it  the  saidC.  D.  recover  of  the  said  A.  B.  the 
sum  of  damages,  for  the  injury  done  by^ln:  .-.•»!.; 


A.  B.'s  beasts  eu  his  said  land,  and  his  costs,  taxed  at 
and  that  execution  issue  in  due  form. 

J.  P.  Justice  of  the  Peace. 

[If  the  avowant  demands  more  than  thirty-five  dollars 
damages,  or  an  issue  is  joined  as  to  the  title  to  the  laud 
whereon  the  beasts  were  taken,  the  cause  must  be  remov- 
ed to  the  county  court,  in  the  same  manner  as  where  the 
defendant  pleads  title  in  an  action  of  trespass  on  land.] 

16.   Writ  and  declaration  to  replery  goods  attached. 
To  the  Sheriff  of  the  county  of,  &c. 

By  authority  of  the  State  of  Connecticut,  you  are  herein 
commanded  justly  and  without  delay,  to  cause  to  be  replevied 
unto  C.  D.  of  his  goods,  viz.  [here  describe  them]  now 
attached  and  detained  by  A.  B.  of  by  virtue  of  a  writ 

of  attachment  in  his  favour  against  the  said  C.  D.  issued  in 
due  form,  and  returnable  before  J.  P.  justice  of  the  peace 
for  said  county,  on  the  day  of  And  you  are  to 

return  this  writ  with  the  said  writ  of  attachment,  into  the 
office  of  the  said  justice  J.  P.  twenty-four  hours  at  least  be- 
fore the  said  writ  of  attachment  is  made  returnable,  and  to 
give  notice  of  the  same  and  of  your  doings  hereon  to  the 
said  A.  B.  (the  said  C.  D.  having  given  bond  with  sufficient 
surety  according  to  law).  Hereof  fail  not,  but  due  service 
and  return  make.  Dated,  &.c. 

J.  P.  Justice  of  the  Peace. 

The  same  bond  must  betaken  as  in  the  preceding1  case. 
and  the  writ,  when  it  can  be  done,  should  be  delivered  to  be 
served  by  the  samp  officer  who  attached  the  property.  The 
bond  should  be  sumcient  to  indemnify  the  attaching  party, 
and  equal  to  the  value  of  the  goods  attached.  The  bond 
must  be  annexed  to  the  writ,  and  kept  on  file  by  the  Jus- 
tice, as  surety  to  the  attaching  creditor. 

17.  Declaration  in  Replevin,  where  property  is  attached  be- 
longing to  a  third  person. 
To  the  Sheriff,  &c. 

By  authority  of  the  State  of  Connecticut,  you  are  hereby 
commanded  justly  and  without  delay,  to  cause  to  he  repte- 
vied  to  C.  D.  his  goods,  viz.  [here  describe  them]  wrong- 
fully attached  or  taken  by  A.  B.  of  by  a  writ  of  at- 
10 


no 

tachment  in  his  name  and  favour,  against  £.  F.  of  and 

by  him  unjustly  detained  in  the  custody  of  O.  P.  the  officer 
who  served  said  writ  of  attachment,   and  you  are  hereby 
commanded  to  summon  the  said  A.  B.  to  appear  before  J. 
P.  justice  of  the  peace  within  and  for  the  county  of 
at  his  office  in  in  said  county,  on  the         day  of 

then  and  there  to  answer  unto  said  C.  D.  in  a  complaint  or 
plea  of  trespass,  wherein  the  said  C.  D.  complains  that  the 
said  A.  B.  on  the  day  of  at  wrongfully 

took  the  aforesaid  goods,  then,  ever  since,  and  still  the 
property  of  the  said  C.  D.  from  and  out  of  the  possession 
of  ;  the  same  having  been  so  wrongfully  taken  on  a 

writ  of  attachment  duly  issued  in  favour  of  the  said  C.  D. 
against  E.  F.  returnable  before  J.  P.  justice  of  the  peace, 
for  said  county,  on  the  day  of  at  as  and 

for  the  property  of  the  said  E.  F.  and  to  respond  the  judg- 
ment that  might  be  recovered  against  him  the  said  E.  F.  in 
said  action  ;  but  the  said  C.  D.  says  that  said  goods  were 
tiot  the  property  of  said  E.  F.  when  so  attached  or  taken, 
but  were  then  and  still  are  the  property  of  the  said  C.  D. 
and  which  said  goods  so  wrongfully  taken,  have  ever  since 
been  and  still  are  unjustly  detained  from  the  said  C.  D.  un- 
til this  time,  which  is  to  the  damage  of  the  said  C.  D.  as  he 
aaith,  the  sum  of  dollars,  and  therefore  he  brings  this 
suit  (the  said  C.  D.  having  given  bond,  with  sufficient 
surety  according  to  law).  Hereof  fail  not  and  make  due 
return  of  this  writ,  with  your  doings  thereon  endorsed. 
Dated  at  J.  P.  Justice  of  the  Peace. 

The  following  bond  must  be  taken  by  the  justice  issuing 
the  writ,  and  annexed  thereto  : 

You  A.  B.  and  C.  D.  of  acknowledge  yourselves, 

jointly  and  severally, bound  to  E  F.  of  in  a  recogni- 

•/ance  of          dollars,  that  G.  H.  of  shall  prosecute 

the  writ  of  replevin,  that  he  hath  now  taken  out  against  the 
Haid  E.  F.  at  the  next  county  court,  to  be  holden  at 
on  the         Tuesday  of  next,  (or,  before  the  justice  of 

the  peace  1  efore  whom  the  same  is  made  returnable,)  and 
in  case  he  fail  to  make  his  plea  good,  to  return  and  deliver 
the  goods  directed  to  be  replevied  to  J.  K.,  the  officer,  who 
attached  the  same,  in  a  suit  in  favour  of  said  E.  F.  against 
J..  M.  of  so  that  they  may  be  forthcoming  to  be  taken 


Ill 

on  the  execution  that  may  be  recovered  by  said  E.  F.  m 
said  suit ;  and  on  failure  thereof,  to  pay  the  debt,  damage? 
and  costs,  that  may  be  recovered  in  said  suit. 

The  defendant  if  he  intends  to  justify,  must  make  avowry, 
oi\he  may  plead  the  general  issue,  and  by  giving  notice, 
may  under  that  plea  set  up  a  justification.  Cases  of  this 
kind  will  usually  depend  on  the  right  of  property  in  the 
goods  attached.  If  the  court  is  of  opinion  that  the  goods 
belonged  to  the  plaintiff  in  replevin,  the  judgment  should 
be  for  him  to  retain  the  goods,  and  also  to  recover  damages 
for  the  unlawful  taking  and  detention  of  them,  and  his  costs  ; 
but  if  the  plaintiff  fail  to  make  out  a  title  to  the  property, 
judgment  should  be  rendered  against  the  plaintiff,  that  he 
return  the  goods  to  the  officer  who  attached  them,  and  that 
on  failure  thereof,  he  pay  the  value  of  such  goods,  when 
they  do  not  exceed  the  amount  of  the  debt  or  damages  and 
costs  that  might  be  recovered  in  the  suit  on  which  they 
were  attached,  and  where  they  do  .exceed  it,  that  he  pay 
the  amount  of  the  judgment,  damages  and  costs  that  may  be 
recovered  in  the  attaching  suit  (a).  The  judgment  must 
be  according  to  the  statute,  and  the  execution  must  follow 
the  judgment. 

Record  of  judgment  for  the  Plaintiff. 

At  a  court,  &c.  [state  the  action,  the  avowry,  or  justifica- 
tion, the  reply  to  it,  and  the  issue  joined  by  the  parties,  as 
in  the  first  case]  and  having  heard  the  parties  with  their 
witnesses,  I  find  the  issue  for  the  plaintiff  ;  whereupon  it 
is  considered  that  the  plaintiff  retain  the  said  goods  describ- 
ed in  his  said  declaration,  and  that  he  recover  his  costs  of 
suit  taxed  at  and  that  execution  issue  for  said  costs, 

and  seventeen  cents  more  for  the  same,  returnable  accord- 
ing to  law. 

Judgment  for  the  Defendant. 

—And  having  heard  the  parties,  I  find  the  issue  for  the 
defendant,  and  am  of  opinion  that  the  plaintiff  has  failed  to 
make  out  a  title  to  the  goods  described  in  his  said  declara- 
tion, and  do  find  said  goods  to  be  of  the  value  of  dol- 
lars, and  less  than  the  judgment  that  may  be  recovered  in 
the  action  in  which  they  were  attached';  whereupon  it  is 
considered  that  he  return  the  said  goods  to  O.  P.  of 
»he  officer  who  attached  the  same  at  the  suit  of  the  defend- 
(a)  St.  383. 


ant  against  E.  F.  that  they  may  be  held  to  respond  the  judg- 
ment that  may  be  recovered  in  said  suit,  and  that  on  failure 
of  the  plaintiff  to  return  said  goods,  or  deliver  the  same  to 
the  officer  who  may  execute  this  judgment,  that  the  defend- 
ant recover  of  the  plaintiff  the  sum  of  dollars  dama- 
ges, being  the  value  of  said  goods  and  his  costs  of  suit  tax- 
ed at  and  that  execution  issue  therelbr. 

Execution. 

To  the  Sheriff,  &c.       Whereas  A.  B.  of  recover- 

ed judgment  before  me,  .1.  P.  justice  of  the  peace  for  the 
county  of  on  the  day  of  against  C.  D.  of 

in  an  action  of  replevin,  brought  on  a  certain  statute  law  of 
this  state,  by  the  saidC.  D.  against  the  said  A.  B.,  that  the 
said  A.  B.  return  the  goods  replevied  to  him  in  said  suit, 
viz.  [here  describe  the  goods]  to  O  P.  of  the  officer 

who  attached  the  same  at  the  suit  of  the  said  A.  B.  against 
E.  F.  that  the  same  may  be  held  by  said  officer  to  respond 
the  judgment  that  may  be  recovered  by  the  said  A.  B. 
against  the  said  E.  F.  in  said  action  ;  and  that  on  failure  of 
the  said  C.  D.  to  return  said  goods,  the  said  A.  B.  recover 
of  the  said  C.  D.  the  sum  of  dollars  damages,  being 

the  value  of  said  goods,  the  same  being  of  less  value  than 
the  judgment  that  may  be  recovered  by  the  said  A.  B. 
against  the  said  E.  F.  in  said  action,  and  the  sum  of 
costs  of  suit ;  whereof  execution  remains  to  be  done  : — 
These  are  therefore  by  authority  of  the  State  of  Connecti- 
cut to  command  you  to  demand  the  said  goods  of  the  said 
C.  D.,  &on  the  same  being  delivered  to  you,  or  found  by  you 
with  in  your  precincts,  you  are  to  take  said  goods  &.  return  and 
deliver  the  same  unto  the  said  O.  P.  to  be  held  by  him  for 
the  purposes  aforesaid,  and  on  failure  of  said  C.  D.  to  de- 
liver said  goods  to  you,  to  be  returned  as  aforesaid,  and  in 
case  you  cannot  find  the  same  so  as  to  return  them,  you 
are  further  commanded  that  of  the  goods,  chattels  or  lands 
of  the  said  C.  D  within  your  precincts,  you  cause  to  be  le- 
vied, and  the  same  being  disposed  of  or  appraised  as  the 
law  directs,  paid  and  satisfied  unto  the  said  A.  B.  the  afore- 
said sum  of  dollars  damages,  and  the  sum  of 
costs,  &,c.  [as  in  common  cases.] 

[Where  the  goods  are  of  greater  value  than  the  judg- 
ment that  may  be  recovered  in  the  original  suit  at  which 
the  goods  were  attached,  the  rule  of  damages  is  not  the  va- 


113 

hie  of  the  goods,  but  the  amount  of  such  judgment,  which 
it  would  seem  the  court  must  inquire  into.  There  seeme 
to  be  great  difficulty  in  rendering  judgment  in  conformi- 
ty to  the  statute  where  the  plaintiff  faik  of  making  out  a 
title  to  the  goods,  and  it  would  have  been  better  to  have 
given  judgment  only  for  the  costs  in  such  cases,  and  left  the 
defendant  to  his  remedy  on  the  bond  ;  and  as  the  law  now 
is,  he  has  a  remedy  on  the  bond,  if  the  judgment  in  the  re- 
plevin is  in  his  favour,  and  is  not  so  rendered  as  to  afford 
him  redress,  or  is  not  enforced,  or  cannot  be  enforced  from 
the  inability  of  the  plaintiff.] 

Where  several  persons  in  distinct  suits  attach  the  same  pro- 
perty, all  must  be  joined  in  the  action  of  replevin ;  the  decla- 
ration must  state  each  attachment  or  taking  of  the  property 
severally,  and  all  of  the  attaching  creditors  must  be  cited  to 
appear  and  defend  in  the  suit.  This  could  not  be  done  ac- 
cording to  the  principles  of  the  common  law,  applicable  to 
actions  of  trespass,  as  the  attachment  of  the  goods  by  each 
creditor  would  be  a  distinct  trespass,  and  the  defendants 
could  not  be  joined  ;  but  the  joining  of  all  of  the  attaching 
creditors  in  one  suit,  seems  to  be  the  only  mode  in  which 
the  statute  can  be  carried  into  effect,  as  there  can  be  but 
one  judgment  rendered.  The  statute  is  attended  with  great 
difficulty. 


CHAPTER  XI. 


OF    ACTIONS    ON    STATWTES. 

Bastardy. 

The  form  of  proceeding  upon  the  statute,  providing  foi 
the  support  of  bastard  children,  is  of  a  criminal  nature,  al- 
though in  its  consequences  it  is  only  a  civil  action,  (o)  Any 
single  woman  who  is  pregnant  with  a  bastard  child,  or  after 
her  delivery  may  exhibit  her  complaint  to  a  justice  ot  the 
town  where  she  resides,  against  the  person  she  charges 
with  being  the  father  of  such  child  ;  to  the  truth  of  which 

(a)  Stat.  91. 
10* 


114 

cuinplaiut,  she  must  make  oath  before  said  justice,  who 
thereupon  n<ay  grant  a  warrant,  as  in  criminal  cases,  to  ar- 
rest the  person  charged  and  bring  him  before  him,  and  if 
on  enquiry  he  finds  probable  cause  he  may  order  such  per- 
son to  become  bound  with  surety  to  appear  before  the  next 
county  court,  to  abide  the  order  of  said  court,  and  on  his 
failure  to  procure  surety,  he  is  to  be  committed  as  in  crim- 
inal cases.  The  woman  in  such  cases  is  admitted  a  witness  ; 
but  she  must  have  been  examined  on  oath,  and  put  to  the 
discovery  in  the  time  of  her  travail,  and  have  continued 
constant  and  uniform  in  her  accusation. 

If  the  mother  of  a  bastard  child  neglect  or  refuse  to  proceed 
against  the  reputed  father  of  such  child,  the  town  interested 
in  the  support  of  such  child,  when  security  shall  not  be  of- 
fered to  indemnify  such  town  against  the  support  of  such 
child,  may  by  their  select-men  institute  a  suit  against  the 
person  accused  ;  or  the  select-men  may  take  up  and  pursue 
in  the  name  of  the  town,  any  suit  commenced  by  the  moth- 
er, in  case  she  fails  to  prosecute  the  same  to  final  judgment. 
Where  the  mother  fails  to  prosecute,  or  having  commenc- 
ed a  suit  neglects  to  pursue  it.  thereby  giving  the  town  a 
right  to  prosecute,  whether  the  select-men  commence  an 
original  suit,  or  take  up  and  pursue  one  commenced  by  the 
mother,  they  must  do  it  in  the  name  of  the  town,  not  in  the 
name  of  the  select-men,  and  they  are  to  pursue  such  suit  as 
the  agents  of  the  town  (6).  When  a  suit  has  been  com- 
menced by  the  mother,  and  a  bond  taken  to  the  adverse 
party,  and  she  afterwards  fails  to  prosecute  such  suit,  and 
it  is  pursued  by  the  select-men,  a  suit  on  such  bond  or  re- 
cognizance must  be  in  the  name  of  the  town,  not  in  the 
name  of  the  select-men  (c).  It  has  been  decided  that  th<; 
proceeding  under  this  statute  is  a  civil  suit,  and  if  the  plain- 
tiff is  an  infant,  she  must  sue  by  guardian,  or  if  she  has  no 
parent  or  guardian,  by  her  next  friend,  which  is  any  person 
who  will  permit  the  suit  to  be  brought  forward  in  his  name 
and  become  responsible  for  the  cost,  in  case  of  failure. 

Complaint  during  Pregnancy. 

To  J.  P.  Justice  of  the  Peace  for  the  county  of 

comes  A.  B.  of  and  complaint  makes,  that  she  is,  and 

for  more  than  ten  months  last  past   hath  been,  a  single 

and  unmarried  woman  ;  that  she  is  pregnant  and  with  child. 

(6)  2  Con.  Eep.  338.  (c)  ih. 


116 

oegotteu  upon  her  body  by  C.  D.  of  a  single  rnau,  on  or 
about  the  day  of  at  and  which  child  when  born  wili 
be  a  bastard  ;  and  the.  complainant  says  that  said  C.  D.  is 
the  father  of  said  child,  with  which  she  is  now  pregnant ; 
and  she  prays  process  against  the  said  C.  D.  that  he  may 
be  arrested  and  brought  before  your  worship,  or  some  oth- 
er justice  of  the  peace  of  the  town  of  proper  to  hear 
the  same,  that  he  may  be  examined  in  the  premises  and 
dealt  with  agreeably  to  the  statute  in  such  case  provided. 
Dated,  &c.  A.  B. 

[The  complainant  must  make  oath  to  the  liruth  of  the 
complaint,  which  the  justice  must  certify  on  the  same.] 

H          county,  ss.     H          ,          day  of          A.  D. 

Personally  appeared  before  me  the  aforesaid  A.  B.  and 
made  oath  to  the  truth  of  the  foregoing  complaint  by  her 
subscribed,  and  to  the  matters  therein  contained. 

J.  P.  Justice  of  the  Peace. 

Warrant. 

To  the  Sheriff,  &c.  By  authority  of  the  State  of  Con- 
necticut, you  are  hereby  commanded  without  to  delay  to 
arrest  the  body  of  C.  D.  of  mentioned  in  the  afore- 

said complaint,  and  him  forthwith  have  before  the  under- 
signed authority  or  some  other  justice  of  the  peace  of  said 
town  of  to  answer  to  the  foregoing  complaint,  a&d  be 

dealt  with  therein,  agreeably  to  the  statute  in  such-case 
provided.  Dated,  &c. 

State  duty  of  thirty-four  cents  is  paid  hereon,  and  E.  F. 
recognized  in  the  sum  of  dollars  for  prosecution. 

Signed. 
Plea. 

The  said  C.  D.  defends,  pleads  and  say?,  that  he  is  nol 
guilty  in  manner  and  form  as  is  alleged  in  said  complaint, 
and  hereof  for  trial  puts  himself  on  the  court. 

Defendant  for  himself. 
And  the  said  complainant  doth  likewise.  A.  B. 

H  county,  ss.     H 

At  a  court  holden  before  me,  on  this  day,  A.  B.  against 
C.  D.  the  latter  having  been  arrested  by  virtue  of  a  war- 
rant issued  upon  the  complaint  of  the  said  A.  B.  and  brought 


11(3 

before  me  to  answer  to  said  complaint,  wherein  the  said  A.  B. 
allegeth  that  she  is,  and  for  more  than  months  hath  been 
a  single  woman,  that  she  is  pregnant  and  with  child,  begotten 
upon  her  body  on  or  about  the  day  of  by  the  said 
C.  D.  which  child  when  born  will  be  a  bastard,  and  that  the 
said  C.  D.  is  the  father  of  said  child  ;  and  the  said  C.  D.  being 
required  to  answer  to  said  complaint  says  he  is  not  guilty, 
and  puts  himself  on  the  court  for  trial  ;  and  the  said  com- 
plainant doth  the  same  ;  and  having  fully  heard  the  parties 
with  their  witnesses,  and  examined  the  said  complainant  on 
oath,  I  am  of  opinion  that  the  said  C.  D.  is  guilty,  as  charg- 
ed in  said  complaint,  and  it  is  thereupon  considered,  that 
the  said  C.  D.  become  bound  in  a  recognizance  with  suffi- 
cient surety  unto  the  said  A.  B.  in  the  sum  of 
dollars,  conditioned  that  he  appear  before  the  next  county 
court  to  be  holden  at  within  and  for  the  county  of 

on  the  Tuesday  of  then  and  there  to 

answer  to  the  charges  contained  in  said  complaint,  and 
abide  the  decision  of  said  court  thereon,  and  stand  commit- 
ted until  sentence  be  complied  with. 

Recognizance. 

You  C.  D   of  named  in  the  aforesaid  complaint 

as  principal  and  E.  F.  as  surety,  acknowledge  yourselves 
jointly  and  severally  bound  to  A.  B.  of  named  in 

the  foregoing  complaint,  in   a  recognizance  of 
dollars,  that  the  said  C.  D.  shall  appear  before  the  county 
court  to  be  holden  at  in  and  for  said  county  on 

the  Tuesday  of  A.  D.  and  then  and 

there  answer  to  the  charges  contained  in  the  aforesaid  com- 
plaint, and  abide  the  decision  of  said  court  thereon. 

Taken  and  acknowledged  in  H  this 

day  of  A.  D.         before  me. 

J.  P.  justice  of  the  peace. 

If  the  party  neglects  or  refuses  to  recognize  he  must  be 
committed. 

Mittimus. 

To  the  she  riff  &,c.  Greeting. 

Whereas  C.  D.  of  was  this  day  brought  before- 

me  by  virtue  of  a  warrant  issued  on  the  complaint  of  A.  B. 
of  wherein  the  said  A.  B.  complains  that  on  or 


117 

about  the  day  of  she  was  begotten  witf. 

child  by  the  said  C.  D.  with  which  she  is  now  pregnant, 
th.it  she  was  at  that  time  and  still  is  a  single  woman  ;  that 
rtie  said  C.  D.  is  the  father  of  said  child,  which  when  born 
will  be  a  bastard  ;  and  the  said  C.  D.  being  required  to 
answer  to  said  complaint,  said  he  was  not  guilty,  and  put 
himself  on  the  court  for  trial  :  and  the  complainant  like- 
wise ;  and  having  heard  the  parties  with  their  evidence, 
and  examined  the  said  A.  B.  on  oath,  did  find  that  the 
said  C.  D.  was  guilty,  as  alleged  in  said  complaint  : 
whereupon  it  was  considered  that  he  become  bound  with 
sufficient  surety,  in  a  recognizance  to  the  adverse  party 
the  said  A.  B.  in  the  sum  of  dollars,  that  he  appear 

before  the  county  court  to  be  holden  at  H  in  and 

for  the  county  of  H  on  the  day  of 

then  and  there  to  answer  to  said  complaint,  and  abide  the 
decision  of  said  court  thereon  ;  and  the  said  C.  D.  having 
neglected  and  failed  to  recognize  with  surety  as  required  : 
These  are  therefore  by  authority  of  the  state  of  Con- 
necticut, to  command  you  forthwith  to  convey  the  said 
C.  D.  and  him  commit  into  the  custody  of  the  keeper  of 
the  eaol,  in  and  for  said  county  of  who  is  hereby 

commanded  to  receive  the  said  C.  D.  and  him  safely  keep 
in  said  gaol,  until  delivered  by  due  course  of  law  ;  and  you 
are  also  to  leave  with  said  keeper  this  mittimus.  Hereof 
fail  not,  but  due  service  make. 

Dated  &c.  J.  P.  Justice  of  the  Peace. 

Complaint  after  delivery. 

To  J.  P.  Esq.  of  the  town  of  justice  of  the 

peace  for  H  county,  comes  A.  B.  af  in  said 

county,  and  complaint  makes,  that  on  the  day  of 

she  was  delivered  of  a  female  child,  which  is  a 
bastard  and  begotten  upon  her  body  as  she  saith  by  C.  D. 
of  on  or  about  the  day  of  ; 

that  when  said  child  was  begotten  she  wa^j  and  ever  since 
hath  been  a  single  woman  ;  and  she  further  saith  that  dur- 
ing her  travail  with  said  child,  she  was  put  to  the  discov 
ery  of  the  truth  as  to  who  was  the  father  thereof,  and  that 
she  then  accused  the  said  C.  D.  of  having  begotten  said 
child  of  her  body,  on  or  about  the  said  day  of 

and  that  she  hath  ever  since  continued  constant  and  ani 


us 

form  in  her  accusation  against  the  said  C.  D.  and  that  she 
hath  at  all  times  charged  him  with  being  the  father  of  said 
child.  And  the  complainant  saith  that  said  child  is  now 
living  and  that  she  is  subjected  to  great  expense  for  its 
maintenance  ;  and  the  complainant  prays  process  against 
the  said  C.  D.  that  he  may  be  arrested  and  examined  touch- 
ing the  charges  herein,  and  be  dealt  with  agreeably  to  the 
statute  in  such  cases  provided. 

Dated  at  &c.  A.  B. 

The  oath,  warrant,  state  duty  and  bond,  the  same  as  the 
preceding.  The  judgment  or  record  will  vary  from  the 
foregoing  only  in  reciting  the  complaint,  which  must  be 
set  out  as  it  is  alleged.  The  recognizance  and  mittimus 
will  be  the  same. 

Complaint  by  Select-men. 

To.  J.  P.  Esq.  of  H  justice  of  the  peace  for  the 

county  of  comes  A.  B.,  C.  D.  and  E.  F.  a  major- 

ity of  the  select-men  for  said  town  of  H  in  said 

county  of  H  and  in  the  name  and  behalf  of  said 

town  of  II  complain  that  G.  H.  of  said  town  of 

H  on  the  day  of  at  said  H 

was  delivered  ofa  malechild,  born  of  her  body,  and  that  the 
said  G.  H.  now  is  and  for  more  than  ten  months  before  the 
birth  of  said  child  was  a  single  woman.  And  they  further 
complain  that  said  child  was  begotten  upon  the  body  of 
the  said  G.  H.  by  J.  N.  of  on 

or  about  the  day  of  at  H  , 

that  said  child  is  now  living  and  a  bastard,  and  chargeable 
(or  likely  to.  be  chargeable)  to  said  town  of  H  , 

that  said  G.  H.  hath  neglected  and  doth  still  neglect  and 
decline  to  bring  forward  a  complaint  or  suit  to  recover 
maintenance  for  said  child,  and  that  the  said  G.  H.  and  the 
said  J.  N.  have  neglected  and  declined  to  give  bond  to  in- 
demnify said  town  against  the  maintenance  of  said  child  ; 
wherefore  said  complainants  in  the  name  and  behalf  of 
said  town,  pray  that  process  may  issue  against  the  said  J. 
N.,  that  he  may  be  arrested  and  examined  touching  the 
premises,  and  be  dealt  with  therein,  agreeably  to  the 
statute  in  such  case  provided. 

[To  be  signed  by  the  Select-men.) 


NUMMARY    PROCESS    TO    RECOVER    POSSESSION    O#*  HOUSES 
OR    LANDS. 

To  J.  P.  Esq.  justice  of  the  peace  for  the  county  of 
H  ,  comes  A.  B.  of  H  ,  in  said  county,  and 

makes  complaint,  that  he  is   owner  of  certain  messuage, 
consisting  of  a  dwelling-house,  out  buildings,  and  the  yard 
and  garden  appurtenant  thereto,  situated  in  said 
and  bounded  and  described  as  follows,  viz     (describe  the 
premises)  :  that  on  the  day  of  he  leased 

the  same  by  poral  lease  to  C.  D.  of  said  H  for  the 

term  ot  months,  next  following,  and  the  said  C. 

D.  entered  into  the  possession  of  the  same  ;  that  after- 
wards viz.  on  the  day  of  the  complainant 
drew  a  written  notice  in  the  words  and  figures  following, 
viz.  I  hereby  give  you  notice  that  you  are  to  quit  pos- 
session of  the  house,  (land  or  apartment  as  the  case  may 
be)  now  occupied  by  you,  on  or  before  the  day  of 

A.  D.  Dated  at  H  the 

day  of  A.  B. 

[The  time  in  the  notice  must  be  thirty  days  or  more.] 
And  the  complainant  saith  that  he  made  duplicate  cop- 
ies of  said  notice,  one  of  which  he  left  on  the  day  of  the 
date  thereof,  at  the  said  residence  of  the  said  C.  D.  (or  de- 
livered to  him)  in  the  presence  of  one  credible  witness  ; 
and  the  other  he  hath  in  possession,  ready  to  be  produced 
in  court ;  and  the  complainant  farther  informs  that  said  C. 
D.  hath  not  quit  said  dwelling  house,  although  the  time  on 
or  before  which,  he  was,  so  as  aforesaid  notified  to  quit  the 
same,  hath  elapsed,  and  although  he  has  been  often  re- 
quested, and  demanded  so  to  do  ;  but  he  doth  neglect  and 
refuse  to  quit  said  premises  ;  whereupon  the  complainant 
prays  that  the  said  C.  D.  may  be  summoned  to  appear  be- 
fore your  worship  to  answer  to  this  complaint,  and  show 
reasons,  if  any  he  hath,  why  he  should  not  quit  said  prem- 
ises ;  and  also  prays  that  six  disinterested  freeholders  of 
said  town  of  H  may  be  summoned  to  appear  before 

your  worship  at  the  time  and  place  the  said  C.  D.  may 
be  summoned  to  appear  and  answer  to  said  complaint,  t» 
enquire  whether  the  said  C.  D.  is  the  lessee  of  the  com- 
plainant and  holds  over  the  term  of  his  lease,  and  also 
whether  notice  has  been  given  to  the  lsaid  lessee  to  quit 
said  premises  as  aforesaid,  agreeably  to  the  provisions  of 


120 

the  statute  in  such  case  provided,  and  whether  said  C.  D. 
has  held  possession  of  said  premises  since  the  expiration 
of  said  term,  as  stated  herein. 

Dated  at  &c.  A.  B. 

To  the  sheriff  of  H  Greeting  : 

By  authority  of  the  state  of  Connecticut  you  are  hereby 
commanded  to  summon  C.  D.  of  mentioned  in  the 

foregoing  complaint  to  appear  before  me  the  undersigned 
authority,  at  my  office  in  said  town  of  H  on  the 

day  of  at  o'clock,  P.  M.  then  and  there 

lo  answer  to  the  foregoing  complaint  of  A.  B.  and  shew 
reason,  if  any  he  hath,  why  he  should  not  quit  the  posses- 
sion of  the  premises  described  in  said  complaint,  and  leas- 
ed to  him  by  the  said  complainant.  Hereof  you  are  not  to 
fail,  but  make  due  service  and  return.  Dated  &c. 

1  he  said  A.  B.  as  principal,  and  E.  F.  as  surety,  recog- 
nize jointly  and  severally  in  the  sum  of  dollars  for 
prosecution,  before  me. 

J.  P.  justice  of  the  peace. 
Plea,  not  guilty. 

Venire,  or  summons  for  Jury. 

To  the  sheriff  of  &c.  Greeting  : 

By  authority  of  the  state  of  Connecticut  you  are  hereby 
commanded  to  summon  or  cause  to  appear  before  me  the 
undersigned  authority  on  the  day  of  A.  D. 

at  my  office  in  H  in  said  county  at      o'clock,  P.  M. 

of  said  day,  six  disinterested  freeholders  of  said  town  of 

then  and  there  to  enquire  whether  C.  D.  of 
is  lessee  of  A.  B.  of  of  a  certain  messuage,  con- 

sisting of  a  dwelling  house,  out  buildings,  &c.  situated  in 
said  H  and  bounded  and  described  as  follows, 

and  whether  the  said  C.  D.  holds  over  his 
lease,  and  also  whether  said  C.  D.  has  been  notified  to 
quit  the  possession  of  said  premises  agreeably  to  the  re- 
quirements of  the  statute  in  such  case  provided  ;  and  like- 
wise whether  the  said  C.  D.  hath  held  possession  of  said 
premises,  after  the  time  at  or  before  which,  he  was  noti- 
fied to  quit  the  possession  thereof.  Hereof  fail  not  &.c. 
Dated  &c.  J.  P.  justice  of  the  peace." 


isn 

Officer's  return. 
H  county,   ss.  H 

By  virtue  hereof  I  summoned  the  six  freeholders  whose 
names  are  hereunto  annexed,  all  of  said  H  and  dis- 

interested between  the  parties,  and  in  the  matter  mentioned 
herein,  to  appear  at  the  time  and  place  named  within. 
[Here  annex  their  names.] 

C.  P.  constable. 
[Oath  to  the  Jurors  same  as  in  civil  cases.] 

Verdict. 
H  county,  ss  H 

A.  B.  against  C.  D.  complaint  for  holding  over  term  of 
lease.  In  this  case  the  jury  find  that  the  said  C.  D.  is  the 
lessee  of  the  complainant,  that  notice  in  writing  agreeably 
to  the  statute  has  been  given  him  to  quit,  that  he  holds  over 
his  lease,  and  also,  that  he  holds  possession  since  the  time 
at  or  before  which,  he  was  notified  to  quit,  as  the  com- 
plainant hath  alleged. 

[Signed  by  all  the  Jurors,  one  signing  as  Foreman.] 

Record  of  Judgment. 
II  county  ss.  II 

At  a  court  holden  before  J.  P.  Esq.  of  aforesaid. 

one  of  the  justices  of  the   peace  of   said  county,  on  thi> 
day  of  A.  B.  of  said  H  .   com- 

plainant against  C.  D.  of  wherein  the  said  complain- 

ant snith  that  the  said  C.  D.  is  his  lessee  of  a  certain  mes- 
suage situated  in  H  and  described  in  his  said  com- 
plaint, th;it  he  has  been  notified  agreeably  to  the  statute 
in  such  case  provided,  to  quit  said  premises  ;  that  he  holds 
over  his  leasft  and  continues  in  possession  after  the  time, 
at  or  before  which,  he  was  notified  to  quit  ;  and  the  said 
C.  D.  being  required  to  answer  to  said  complaint,  says  he 
is  not  guilty,  and  for  trial  puts  himself  on  the  country 
agreeably  to  the  statute  in  such  case  provided  :  and  the 
said  complainant  does  likewise  ;  and  the  parties  having 
been  fully  heard,  with  their  witnesses,  the  cause  w;  s  duly 
committed  to  a  jury  summoned  for  the  trinl  of  the  same, 
agreeably  to  the  statute  in  such  c^se  provided,  and  du!y 
sworn,  who  on  their  oaths  say,  that  the  said  C.  D.  is  lessee 
if  the  said  A.  B,  of  the  premises  described  in  his  saidcoov 
11 


122 

plaint,  and  holds  over  the  term  of  his  lease,  that  notice  has 
been  given  him  to  quit,  and  that  he  holds  possession  after 
the  time,  at  or  before  which  he  was  notified  to  quit  said 
premises,  as  is  alleged  in  the  complaint  of  the  said  A.  B.  ; 
and  thereupon  it  is  considered  by  this  court,  that  the  said 
A.  B.  recover  the  possession  of  his?  said  premises,  and  his 
costs  taxed  at  dollars  and  cents,  and  that  ex- 

ecution issue  accordingly. 

Execution. 

To  the  sheriff  &c.  Greeting, 

Whereas  A.  B.  of  recovered  judgment  before 

J.  P.  Esq.  of  H  ,  justice  of  the  peace  for  said 

county,  in  pursuance  of  the  statute  in  such  case  provided, 
on  the  day  of  for  the  possession  of  a  certain 

messuage  consisting  of  a  dwelling  house,  out  houses,  and 
the  garden  and  yard  thereunto  appertaining,  situated  in 
H  ,  and  bounded  and  described  as  follows  :  (here 

describe  the  premises)  against  C.  D.  of  who  un- 

justly holds  over  his  lease,  and  continues  in  the  possession 
thereof,  after  the  expiration  of  the  time,  at  or  before  which 
he  was  notified  to  quit  the  ?ame  ;  and  also  for  his  costs  of 
suit,  taxed  at  dollars,  whereof  execution  remains 

to  be  done.  These  are  therefore  by  authority  of  the  state 
of  Connecticut  to  command  you  without  delay  to  cause  the 
said  A.  B.  to  have  possession  of  and  in  the  premises  afore- 
said, situated  in  said  H  consistingof  a  dwelling-house, 
out-houses,  ihe  land  whereon  they  stand,  and  the  yard  and 
garden  thereunto  appertaining  ;  and  also,  that  of  the 
monies,  goods  and  chattels  of  the  said  C.  D.  you  cause  to 
be  levied  (and  the  same  being  disposed  of  as  the  law  di- 
rects) paid  and  satisfied  unto  the  said  A.  B.  the  aforesaid 
sum  of  with  seventeen  cents  more  for  this  writ, 
together  with  your  own  fees  :  and  for  want  of  such  mon- 
ies, goods  and  chattels  of  the  said  C.  D.  to  be  by  him 
shewn  unto  you  or  found  within  your  precincts,  for  satis- 
fying the  aforesaid  sums,  you  are  commanded  to  take  the 
body  of  the  said  C.  D.  and  him  commit  to  the  keeper  of 
the  gaol  in  H  in  the  county  of  H  who  is  hereby 
commanded  to  receive  the  said  C.  D.  and  him  safely  keep 
until  he  pay  to  the  said  A.  B.  the  aforesaid  sum,  and  be 
by  him  released,  and  also  satisfy  your  fees.  Hereof  faiJ 


,ot,  but  make  due  return  of  this  writ,  with  your  doings 
thereon,  within  sixty  days  next  coming. 
Dated  at  the  day  of  A.  D. 

J.  P.  Justice  of  the  Peace. 

FORCIBLE  ENTRY  AND  DETAINER. 

Complaint. 

To  L.  W.  Esq.  judge  of  the  county  court  for  the  county 
<)f  H  and  J.  P.  justice  of  the  peace  for  said 

county  comes  A.  B.  of  H  in  said  county  of  H 

and  complaint  make?,  that  on  the  day  of 

he  was  well  seized  and  possessed  of  a  certain  parcel  of 
land  and  the  dwelling  house  thereon  standing,  situated  IH 
s-riid  H  and  bounded  as  follows,  viz. 

and  that  afterwards  on  the  day  of  C.  D 

of  ?;iid  H  the  said  A.  B.  then  being  so  possessed 

of  said  premises,  did  with  a  strong  hand  make  forcible  en 
try  into  and  upon  the  aforesaid  premises,  and  with  like 
force  disseize  and  dispossess  the  said  A.  B.  ef  the  same 
premises,  and  with  a  strong  hand  and  great  force  doth  con- 
tinue unto  this  time  to  hold  possession  of  said  premise? 
and  to  deforce  and  keep  the  said  A.  B.  out  of  the  posses- 
sion of  the  same,  against  the  peace  and  contrary  to  the 
form  of  the  statute  entitled  "  An  act  directing  proceedings 
against  forcible  entry  and  detainer."  And  the  said  com- 
plainant prays  process  against  the  said  C.  D.  that  he  may 
be  summoned  to  appear  before  said  judge  and  justice  to 
answer  to  this  complaint,  and  be  dealt  with  herein  agree- 
ably to  the  statute  aforesaid.  And  also  that  you  cause  to 
be  summoned  twelve  freeholders  of  said  county  qualified 
to  act  as  jurors,  to  appear  before  said  justice  of  the  peace 
and  said  judge,  at  the  time  and  place  the  said  C.  D.  may 
be  summoned  to  appear,  to  fill  a  pannel  to  inquire  into 
the  matters  alleged  herein. 

Dated  at  H  day  of  A.  B. 

Summons. 

To  the  sheriff  of  the  county  of  H         A:c.          Greeting  : 
By  authority  of  the  state  of  Connecticut  you  are  hereby 
commanded  to  summon  C.  D.  of  mentioned  in 

the  foregoing  complaint  to  appear  before  us,  L.  W.  judge 
«f  the  county  court  for  said  county  and  J.  P.  justice  of 


124 

the  peace  for  said  county  at  the  office  of  said  J.  P.  in  said 
H  on  the         day  of        at     o'clock  in  the  forenoon, 

[there  must  be  six  days  notice  given  as  in  oth°r  cases  and 
not  more  than  eight]  then  and  there  to  answer  to  the  mat- 
ters contained  in  said  complaint,  and  be  dealt  with  therein 
as  to  law  and  justice  appertaineth.     Dated  &c. 
L.  W.,  Judge. 
J.  P.,  Justice  of  the  Peace. 
Venire  Facias. 
To  the  sheriff  &c.  Greeting  : 

Whereas  A.  B.  of  hath  exhibited  his  complaint  t* 

us,   in  pursuance   of   the   statute  in  such  case  provided, 
wherein  he  saith  that  C.  D.  of  on  the         day  of 

made  forcible  entry  into  a  certain  dwelling-house  situated 
in  said  H  of  which  the  said  complainant  was  then  in 

peaceable  possession,  and  disseized  the  said  A.  B.  and  with 
a  strong  hand  detains  the  same  and  forcibly  holds  the  said 
complainant  out  of  the  possession  thereof.  Wherefore  you 
are  hereby  commanded  to  cause  to  appear  before  us  at  the 
office  of  J.  P.  justice  of  the  pence  for  said  county,  in  H 
on  the  day  of  at  o'clock  in  the  forenoon,  twelve 
freeholders  of  said  county,  qualified  to  act  in  the  matter 
aforesaid,  to  form  a  \>.  nnel,  and  inquire  on  their  oaths  into 
the  allegations  and  matters  set  forth  in  said  complaint  of 
said  A.  B.  Dated  at  H  day  of 

L.  W.,  Judge. 
J.  P.,  Justice  of  the  Peace. 
Plea — Not  guilty. 

Verdict. 

A.  B.  against  C.  D.  complaint,  for  forcible  entry  and  de- 
tainer. In  this  case  the  jury  find  that  the  said  C.  D.  is 
guilty  in  manner  and  form  the  said  A.  B.  hath  alleged  in 
his  said  complaint,  and  that  he  have  restitution  of  his  said 
premises,  and  recover  his  costs. 

[Signed  by  the  Jurors.] 
Record  of  Judgment. 

[State  the  cause  and  recite  the  complaint  as  in  the  case 
of  holding  over  the  term  of  a  lease.] 

And  the  said  C.  D.  pleads  not  guilty  to  said  complaint 
and  puts  himself  on  the  country  ;  and  the  said  A.  B.  does 
the  same  ;  and  the  parties  being  fully  heard,  with  their 
witnesses,  the  cause  was  committed  to  a  jury  summoned 


*nd  irnpanneled  agreeably  to  the  .^tutute  in  such  case  pro 
vided,  and  duly  sworn,  who  return  a  verdict  that  the  said 
C.  D.  is  guilty  as  alleged  in  said  complaint  ;  and  thereupon 
it  is  considered  that  the  said  A.  B.  be  restored  to  and  re- 
seized  of  the  said  premises  described  in  the  said  A.  B's 
complaint,  and  that  the  said  A.  B.  recover  of  the  said  C.  D. 
his  costs  of  suit,  taxed  at  and  that  execution  issue  there- 
for accordingly. 

Execution. 
To  the  sheriff  &c.  Greeting  : 

Whereas  A.  B.  of  recovered  judgment  against  C.  D. 
of  both  in  the  county  of  H  before  us,  L.  W.  judge 
of  the  county  court  for  said  county  of  H  and  J.  P. 

justice  of  the  peace  for  said  county,  on  the  day  of 
holding  a  court  of  inquiry  of  forcible  entry  and  detainer, 
that  he  the  said  A.  B.  be  restored  to,  and  re-seized  of  a  cer- 
tain parcel  of  land,  and  the  dwelling-house  thereon  stand- 
ing, situated  in  said  H  and  bounded  as  follows,  (here 
describe  the  premises,)  and  also  for  his  costs  of  suit,  tax- 
ed at  dollars,  whereof  execution  remains  to  be  done. 
These  are  therefore  by  authority  of  the  state  of  Connec- 
ticut to  command  you  to  cause  the  said  C.  D.  (taking  with 
you  the  power  of  said  county  of  H  if  necessary)  to 
be  immediately  removed  from  said  premises,  and  the  said 
A.  B.  restored  to,  and  re-seized  of  the  same  premises  ; 
and  also  that  you  cnuse  to  be  levied  of  the  goods  and  chat- 
tels of  the  said  C.  D.  to  be  shewn  unto  you  or  found  with- 
in your  precints  (and  the  same  being  disposed  of  agreeably 
to  law)  paid  and  satisfied  unto  the  aforesaid  A.  B.  thn  said 
sum  of  and  seventeen  cents  more  for  this  writ,  together 
with  your  fees  hereon  ;  and  for  want  of  such  goods  and 
chattels  of  the  said  C.  D.  to  satisfy  the  aforesaid  sums, 
and  your  fees,  you  are  commanded  to  take  the  body  of  the 
said  C.  D.  and  him  commit  to  the  keeper  of  the  gaol  in  and 
for  said  county  of  H  ,  who  is  hereby  likewise  com- 
manded to  receive  the  said  C.  D.  and  him  safely  keep  with- 
in said  prison,  until  he  pay  to  the  said  A.  B.  the  sum  afore- 
said, and  be  by  him  released,  and  nlso  to  satisfy  your  fees. 
Hereof  fail  not  but  make  due  return  of  this  writ  within 
sixty  days  next  coming,  with  your  doings  thereon  endorsed, 

Dated  &c.  L.  W.,  Judge. 

J.  P.,  Justice  of  the  Peace. 
11* 


126 

[If  the  defendant  shall  neglect  to  appear,  the  court  must 
proceed  and  inquire  into  the  facts  and  render  judgment  in 
the  same  manner  as  though  he  was  present.  The  court 
must  be  held  in  the  town  where  the  land  lies.  If  the  de- 
fendant is  found  not  guilty,  judgment  is  to  be  rendered  for 
him  to  recover  his  costs.] 

ACTION    ON    THE    STATUTE    FOR    CUTTING    TIMBER. 

Declaration. 

In  a  plea  of  trespass  with  force  and  arms,  whereupon 
the  plaintiff  declares  and  says,  that  on  the  day  of 
he  was  well  seized  and  possessed  of  a  certain  parcel  of 
land  situated  in  W  ,  in  said  county,  and  bounded  as  fol- 
lows, viz.  ;  and  that  afterwards  on  the  said 
day  of  the  plaintiff  being  then  seized  of  said  land  as  ^ 
aforesaid,  the  defendant  wilfully  and  with  intention  to  injure 
the  plaintiff,  entered  into  and  upon  said  piece  of  land,  and 
with  force  and  arms,  then  and  there  cut,  fell,  and  carried 
away  twenty  trees  of  greater  dimensions  than  one  foot  di- 
ameter, and  forty  poles  or  trees  of  less  dimensions  than  one 
foot  diameter,  then  and  there  standing  and  growing  on  said 
premises.  And  the  plaintiff  says  that  said  trees  of  greater 
dimensions  than  one  foot  diameter,  were  worth,  when  so 
eut  and  carried  away,  three  dollars  each  ;  and  that  the 
aforesaid  wrong  doings  of  the  defendant  are  contrary  to  the 
form  of  the  statute,  entitled  "  An  act  for  detecting  and  pun- 
ishing trespasses  in  divers  cases,  and  directing  proceedings 
therein  ;"  and  that  by  means  of  the  premises  and  by  force 
of  said  statute  the  defendant  hath  forfeited  and  become  lia- 
ble to  pay  to  the  plaintiff  for  said  trees  of  greater  dimen- 
sions than  one  foot  diameter,  one  dollar  and  sixty-seven 
cents  for  each  tree,  and  also  three  times  the  value  thereof; 
and  for  each  tree  or  pole  under  the  dimensions  of  one  foot 
diameter  cut  and  carried  away  by  the  defendant  as  afore- 
said, he  hath  forfeited  the  sum  of  eighty-four  cents,  amount- 
ing in  the  whole  to  the  sum  of  dollars,  which  sum  the 
defendant  hath  never  paid,  although  often  requested,  but 
unjustly  refuses  so  to  do.  And  the  plaintiff  says  that  by 
means  of  the  premises  and  by  force  of  said  statute  he  hath 
been  injured  and  damaged  the  sum  cf  dollars,  to  re- 
•I'over  which  &c. 


ACTIONS  OX  THE  STATUTE  TO  RECOVER  THE  VALtL  Of 
COUNTERFEIT  BILLS. 

When  a  person  receives  a  counterfeit  bank  bill,  it  is  hit 
duty  to  deliver  it  to  some  justice  of  the  peace,  who,  if  he 
is  satisfied  the  bill  is  counterfeit,  must  deface  it,  enter  the 
name  of  the  person  of  whom  he  received  it  on  the  back 
of  it,  and  retain  it  in  his  possession.  The  person  so  de- 
livering up  a  counterfeit  bill  must  give  notice  to  the  person 
of  whom  he  took  the  bill  with  whom  it  is  left,  and  demand 
payment,  and  on  neglect  or  refusal,  may  bring  an  action  for 
the  recovery  of  the  amount  thereof  on  the  statute.  He 
must  not  offer  to  return  the  bill  to  the  person  of  whom  he 
received  it,  and  if  he  does,  it  will  bar  him  of  his  remedy 
on  the  statute,  but  he  could  maintain  an  action  at  common 
law,  if  he  has  common  law  testimony.  The  object  of  this 
provision  is  to  stop  the  circulation  of  bad  bills.  A  suit  may 
be  brought  without  notice  and  demand  of  payment,  where 
the  plaintiff  can  make  oath  before  the  justice  issuing  the 
writ  that  he  verily  believes  it  necessary  in  order  to  secure 
the  demand.  In  an  action  on  this  statute  the  parties  may 
be  examined,  on  oath.  The  action  need  not  be  brought 
before  the  same  justice  with  whom  the  bill  is  left. 
Declaration. 

In  an  action  brought  on  a  certain  statute  entitled  "  An 
act  to  prevent  the  passing  of  counterfeit  bills  or  coins," 
whereupon  the  plaintiff  declares  and  says,  that  on  the 
day  of  at  the  defendant  uttered  and  put  off,  and  the 
plaintiff  then  and  there  took  and  received  of  the  defend- 
ant for  a  valuable  consideration,  a  certain  false,  forged  and 
counterfeit  bank  bill  or  note  purporting  to  have  been  issued 
by  the  president,  directors  &  Co.  of  the  Pho?nix  Bank,  a 
bank  incorporated  by  the  laws  of  this  state  ;  and  which  is 
of  the  denomination  and  sum  of  five  dollars,  payable  to 
or  bearer  on  demand,  and  purporting  to  have  been 
signed  by  C.  S.,  president,  and  countersigned  by  G.  B.. 
cashier,  and  numbered  ;  and  which  said  counterfeit 

bill  the  plaintiff  received  as  for  a  true  bill,  he  then  believ- 
ing the  same  so  to  be,  and  paid  the  defendant  the  full 
amount  thereof.  And  the  plaintiff  says,  that  afterwards 
on  the  day  of  discovering  said  bill  to  be  false  and 
forged,  he  in  pursuance  of  said  statute  lodged  the  same 


bill  with  J.  P.  Esq.  justice  of  the  peace  for  the  county  of 
H  ,  and  thereupon  viz.  on  the  said  day  of 

at  gave  notice  to  the  defendant  that  said  bill  was  coun- 
terfeit, that  he  had  lodged  the  same  with  said  the  J.  P.  and 
at  the  same  time  and  place  demanded  of  the  defendant 
payment  of  the  same  bill  or  note,  which  the  defendant  then 
and  there  neglected  and  refused  to  pay,  and  hath  ever 
since  neglected  and  refused  to  pay  the  plaintiff  the  amount 
of  said  counterfeit  bill,  although  often  requested  and  de- 
manded. And  the  plaintiff  says  that  by  means  of  the  prem- 
ises, and  by  force  of  said  statute,  an  action  hath  accru- 
ed to  the  plaintiff  to  recover  of  the  defendant  his  just  dam- 
ages in  the  premises,  which  he  says  are  seven  dollars, 
which  the  defendant  hath  never  paid,  nor  any  part  thereof, 
although  often  requested  and  demanded,  and  to  recover 
which  and  his  costs,  his  suit  is  brought,  &c. 

Action  on  statute  to  prevent  gaming. 

Any  person  losing  any  money  or  other  property  not 
less  than  one  dollar  in  gaming  or  by  betting  on  any  game 
played  by  others,  may  recover  the  same  back  at  any  time 
within  three  months  ;  and  after  three  months  if  the  loser 
has  not  brought  an  action  to  recover  the  same,  any  other 
person  may  sne  for  it  and  recover  treble  the  value  thereof. 
Where  the  loser  brings  this  suit  he  may  call  on  the  defend- 
ant to  disclose  under  onth. 

Declaration  by  the  loser. 

In  a  plea  that  to  the  plaintiff  the  defendant  render  the 
sum  of  dollars  which  to  the  plaintiff  the  defendant 

justly  owes  and  from  him  unjustly  detains,  whereupon  the 
plaintiff  declares  and  says,  that  on  the  day  of 

the  defendant  won  from  the  plaintiff  the  said  sum  of 
dollars  by  playing  at  cards  with  him,  and  the  plaintiff  then 
and  there  lost  said  sum  by  gaming  with  the  defendant  as 
aforesaid,  contrary  to  the  statute  entitled  "  An  act  to  prevent 
gaming."  And  the  plaintiff  says  that  by  means  of  the  prem- 
ises and  by  force  of  said  statute,  an  action  hath  accrued  to 
him  to  recover  of  the  defendant  the  aforsaid  sum,  yet  the  de- 
fendant hath  never  paid  the  same  nor  any  part  thereof,  al- 
though often  requested  and  demanded,  to  the  damage  oi' 
the  plaintiff  the  sum  of  to  recover  which  and  costs  he 
brings  this  suit. 


1*3 

Action  on  statutes  for  preventing  mischief  by  dogs. 
Every  person  is  responsible  not  only  for  the  mischief  or 
Jamage  done  to  the  person  or  property  of  another,  by  his 
i»vn  dog,  but  also  for  that  done   by  the  dog  of  his  minor 
'•:hild  or  servant. 

Declaration  where  the  dog  of  the  defendants  son  injures 

the  son  of  the  plaintiff. 

Then  and  there  to  answer  unto  A.  B.  of  in  an  action 
brought  on  a  certain  statute,  entitled  "  An  act  for  preventing 
mischief  by  dogs,"  whereupon  the  plaintiff  declares  and 
says,  that  C.  D.  of  is  and  for  more  than  one  year  last 

past  has  been  the  owner  and  keeper  of  a  dog  called 
and -that  said  C.  D.    is  a  son  of  the  defendant  and  a  minor 
under  the  age  of  twenty-one  years  ;  and  the  plaintiff  says, 
that  on  the  day  of  at  the  s.-id  dog  of  the 

defendant's  said  son,  being  a  mischievous  and  ferocious  dog, 
attacked  E.  F.  a  child  of  the  plaintiff  of  about  ten  years  of 
age,  and  did  bite  and  wound  him  severely,  whereby  the 
plaintiff  was  put  to  great  trouble  and  expense  for  surgical 
assistance,  nursing  and  taking  care  of  his  said  child.  And 
the  plaintiff  says  that  by  means  of  the  premises  and  by 
force  of  said  statute,  an  action  hath  accrued  to  him  to  re- 
cover of  the  defendant  the  damage  he  hath  sustained  in 
the  premises,  which  he  says  is  the  sum  of  dollars,  which 
sum  the  defendant  hath  never  paid,  although  often  request- 
ed and  demanded,  and  to  recover  which  with  costs  this 
suit  is  brought. 

Declaration  where  the  defendant's  dog  killed  the  plaintiff" 's 

sheep. 

In  an  action  brought  on  a  statute  entitled  "  An  act  for 
preventing  mischief  by  dogs,"  whereupon  the  plaintiff  says, 
that  on  the  day  of  a  certain  dog,  of  which  the  de- 
fendant was  then  and  ever  since  hath  been  the  owner  and 
keeper,  called  tiger,  killed  two  of  the  plaintiff's  sheep  in 
his  pasture  at  H  of  the  value  of  three  dollars  each. 

And  the  plaintiff  says,  that  by  means  of  the  premises,  and 
by  force  of  said  statute  an  action  hath  accrued  to  him  to 
recover  of  the  defendant  his  damages  in  the  premises,  which 
he  says  are  seven  dollars,  which  the  defendant  hath  neg- 
lected and  refused  to  pay,  although  often  requested,  and  t« 
recover  which  &c. 


130 

.-iciion  oa,  statute  regulating  Drivers  of  Stages  and  other 

Carriages. 

In  an  action  brought  on  a  statute  entitled  "  An  act  for  the 
i-egulation  of  drivers  of  stages  &  other  carriages  ;"  where- 
apon  the  plaintiff  declares  and  says,  that  on  the  day  of 

he  was  travelling  on  the  road  leading  from  S  to  H 
in  a  pleasure  waggon  of  four  wheels  drawn  by  one  horse, 
when  he  was  met  by  the  defendant  at  W  travelling  in 
an  opposite  direction  on  said  road  in  a  large  four  wheel 
carriage  or  waggon,  drawn  by  two  horses,  of  which  the  de- 
fendant was  the  driver,  the  plaintiff  turned  to  the  right 
hand,  leaving  ample  room  for  the  defendant  to  pass,  \\ith- 
out  injury  to  his  own  or  the  plaintiffs  carriage,  and  leav- 
ing him  more  than  half  of  the  travelled  path,  and  afford- 
ing him  fair  and  equal  advantage  to  pass,  but  the  defend- 
ant then  and  there  drove  his  said  carriage  or  wasrgon  so 
carelessly  and  negligently,  that  he  run  the  same  forcibly 
against  the  carriage  of  the  plaintiff,  whereby  the  same  was 
over-set  and  much  injured  and  broken,  and  himself  greatly 
exposed.  And  the  plaintiff  says  that  the  aforesaid  wrong 
doings  of  the  defendant  are  contrary  to  the  form  of  the 
aforesaid  statute,  and  to  his  damage  five  dollars  ;  and  that 
by  means  thereof  and  by  force  of  said  statute,  the  defend- 
ant hath  forfeited  and  become  liable  to  pay  to  the  plaintiff 
the  sum  of  fifteen  dollars,  being  treble  the  said  damages 
sustained  by  the  plaintiff,  and  that  an  action  hath  accrued 
to  the  plaintiff  to  demand  and  recover  the  same  ;  which  the 
defendant  hath  neglected  and  refused  to  pay,  although  often 
requested  and  demanded,  and  for  the  recovery  of  which  &c. 


CHAPTER  XII. 

OF    QUI-TAM    ACTIONS    ON    STATUTES. 

This  is  a  mixed  action,  brought  in  the  name  of  a  common 
informer,  or  the  person  injured,  where  by  a  breach  of  some 
statute,  a  penalty  or  forfeiture  is  incurred,  a  part  of 
which  is  given  to  the  public,  and  a  part  to  the  party  injur- 
ed, or  a  common  informer  ;  or  where  a  fine  or  other  pun- 
ishment is  incurred  for  a  breach  of  a  statute,  and  damages 


131 

given  to  the  party  injured.  In  the  former  case,  where 
there  is  a  forfeiture  or  penalty  incurred,  part  to  the  pub- 
lic, either  a  town,  county,  or  the  state,  and  a  part  to  the 
person  injured,  or  some  common  informer,  a  qui-tam  action 
nriy  be  brought  in  the  name  of  the  state  and  the  common 
informer,  to  recover  the  whole  penalty.  This  is  a  mere 
civil  suit,  and  the  same  notice  must  be  given  as  in  other 
cases,  and  it  is  entirely  under  the  control  of  the  person 
who  commences  it.  Where  a  part  of  the  penalty  is  given 
to  a  town  or  county,  the  action  should  be  brought  in  the 
name  of  the  state  and  the  common  informer.  In  cases  of 
a  forfeiture,  part  to  the  public  and  part  to  the  person  who 
prosecutes  for  the  offence,  a  public  prosecution  may  be 
brought  for  the  whole  penalty  previous  to  the  commence- 
ment of  a  suit  by  a  common  informer. 

Information  qui-tam  on  statute,  is  different  from  an  action 
qui-tam  ;  this  is  a  criminal  proceeding  brought  forward  and 
prosecuted  by  a  common  informer,  or  the  person  injured,  in 
his  own  name  and  that  of  the  state.  An  information  qui-tam 
can  only  be  brought  where  the  statute  expressly  provides 
that  remedy, in  case  of  a  forfeiture,  part  to  the  public  &  part  to 
the  party  injured  or  a  common  informer  ;  or  where  an  offence 
is  prohibited  by  statute  and  a  fine  or  other  punishment  in- 
flicted, and  also  damages  to  the  party  injured,  and  the  stat- 
ute makes  no  provision  as  to  the  remedy.  This  is  a  prac- 
tice which  has  grown  up  in  this  state,  but  ought  not  to  be 
extended.  An  infoimation  qui  tain  is  essentially  a  criminal 
proceeding,  and  the  form  is  much  the  same  as  a  public 
prosecution  ;  it  is  however  under  the  control  of  the  pic.in- 
tiff  and  can  be  withdrawn  by  him  (a). 

Qui-tam  for  Pound  Breach. 

To  answer  unto  A.  B.  of  who  sues  in  his  own  name 

and  behalf,  as  well  as  in  the  name  and  behalf  of  the  state  of 
Connecticut,  in  an  action  brought  on  a  certain  statute  entitled 
"  An  act  to  provide  pounds  and  to  regulate  the  impounding 
of  creatures,"  whereupon  the  plaintiff  declares  and  says, 
that  on  the  day  of  he  found  the  cattle  of  the  de- 

fendant, consisting  of  (describe  them)  doing  damage  on  his 
hind,  situated  in  said  town  of  and  which  said  land  is  en- 

(a)  Swf.  Dig.  686-7. 


tag 

closed  by  a  sufficient  fence,  and  then  and  there  took  the 
same  and  proceeded  with  the  said  beasts  and  caused  them 
to  be  confined  arid  lawfully  impounded  in  a  pound  kept  by 
C.  D.  in  said  town  of  and  which  said  pound  is  nearest 
the  place  where  said  beasts  were  taken  ;  and  thereupon 
the  plaintiff  gave  notice  to  the  defendant  of  his  having  so 
taken  and  impounded  his  beasts,  damage  feasant.  And  tbe 
plaintiff  says  that  afterwards,  viz.  on  the  said  day  of 

in  the  night  season  at  said  the  defendant  broke  the 
said  pound,  and  conveyed  from  and  out  of  the  same,  his 
said  beasts,  whereby  the  plaintiff  hath  wholly  lost  his 
poundage  and  damage.  And  the  plaintiff  says,  ihA  by  means 
of  the  premises  and  force  of  the  statute  aforesaid,  the  de- 
fendant hath  forfeited,  and  that  an  action  hath  accrued  to 
the  plaintiff  to  recover  of  the  defendant  the  sum  of  seven 
dollars,  the  one  half  to  and  for  the  use  of  the  treasury  of 
?aid  town  of  and  the  other  half  for  his  own  use,  and 
also  the  damages  sustained  by  the  plaintiff  by  said  pound- 
breach,  which  the  plaintiff  says  is  seven  dollars  ;  which 
sums  the  defendant  hath  never  paid,  although  often  re- 
quested and  demanded,  and  to  recover  said  several  sums, 
for  the  uses  herein  specified,  and  his  costs,  this  action  is 
brought,  hereof  tail  not,  &c. 

Qui-tam  for  gaming  against  the  winner. 
To  answer  unto  A.  B.  of  who  sues  as  well  in  the 

name  and  behalf  of  the  state  of  Connecticut  as  in  his  own 
name  and  beh-ilf,  in  an  action  brought  on  a  certain  statute 
entitled  "  An  act  to  prevent  gaming,"  whereupon  the  plain- 
tiff declares  and  says,  that  on  or  about  the  day  of 
at  the  defendant  and  one  J.  S.  played  divers  games  ot 
cards  together,  for  the  space  of  more  than  one  hour,  and 
that  in  and  by  said  games  the  defendant  won  of  the  said 
3.  S.  the  sum  of  ten  dollars,  and  that  the  said  J.  S.  lo=t  in 
plaving  said  games  at  cards  the  said  sum  of  ten  dollars, 
which  was  won  by  the  defendant  and  then  and  there  paid 
and  satisfied  to  him  by  the  said  J.  S.  contrary  to  the  form 
of  the  statute  aforesaid.  And  the  plaintiff  snys,  that  the 
said  J.  S.  has  not  brought  his  action  on  this  statute  against 
the  defendant  to  recover  said  money  so  won  from  him  by 
the  defendant,  although  three  months  from  the  time  the 
^ame  was  so  won,  has  long  since  elapsed.  And  the  plain 


133 

tiff  say=,  that  by  means  of  the  premises  and  by  force  of 
said  statute,  the  defendant  hath  forfeited  and  become  liable 
to  pay,  and  that  an  action  hath  accrued  to  the  plaintiff  to 
recover  of  him  the  sum  of  thirty  dollars,  being  treble  the 
value  of  ten  dollars,  so  won  by  the  defendant,  of  said  J.  S. 
at  said  games,  one  half  thereof  to  and  for  his  own  use,  and 
the  other  half  for  the  use  of  the  said  county  of  H  , 

which  said  sum  the  defendant  hath  never  paid,  nor  any  part 
thereof,  although  often  requested  and  demanded  ;  and  to 
recover  which,  for  the  uses  aforesaid,  with  costs,  this  suit 
is  brought,  &c. 

Information  qui-tam  for  Breach  of  Peace. 
To  J.  P.  of        Esq.  justice  of  the  peace  for  the  county 
of          comes  A.  B.  of  said  and  complains  as  well  in 

the  name  and  behalf  of  the  State  of  Connecticut,  as  in  his 
own,  that  on  the  day  of  at  in  said  county,  C.  D. 
of  said  with  force  and  arms,  did  assault,  beat  and  wound 
the  complainant,  then  and  there  in  the  peace  of  this  state 
being,  and  about  his  lawful  business,  whereby  he  was  great- 
ly injured  in  his  person,  suffered  much  bodily  pain,  and  for 
a  long  time  was  unable  to  attend  to  his  business  ;  and  which 
said  wrong  doings  of  the  said  C.  D.  are  against  the  peace 
and  contrary  to  the  form  of  the  fifty -ninth  section  of  the 
statute,  entitled  "  An  act  concerning  crimes  and  punish- 
ments," and  of  evil  example.  And  the  complainant  prays 
process  against  the  said  C.  D.  that  he  may  be  arrested  and 
examined  touching  this  complaint,  and  be  dealt  with  there- 
in, agreeably  to  said  statute.  Dated  &c. 

A.  B. 

[Warrant,  the  same  as  in  criminal  cases,  as  the  delin- 
quent is  to  be  arrested  forthwith.] 

Record  of  Judgment. 

At  a  court  holden  at  this  day  of  C.  D.  was 
brought  before  me  by  virtue  of  a  warrant  issued  on  the 
complaint  of  A.  B.  for  that  on  the  day  &c.  [recite  the 
allegations  in  the  complaint]  and  the  said  C.  D.  being  re- 
quired to  answer  to  said  complaint  says  that  he  is  not  guilty, 
and  puts  himself  on  the  court  for  trial  ;  and  having  fully 
heard  the  parties,  T  do  find  that  he  is  guilty  in  manner  and 
form  as  alleged  in  said  complaint ;  whereupon  it  i 


134 

ered  that  the  said  C.  D  pay  a  fine  of  seven  dollars  to  the 
treasury  of  the  said  town  of  [and  that  he  be  impris- 

oned ten  days  in  the  common  gaol  of  said  county,]  and  it 
is  further  considered  that  he  pay  to  the  said  A.  B.  the  sum 
of  five  dollars  damages,  and  the  costs  ot  this  prosecution, 
and  stand  committed  until  judgment  be  complied  with. 

[If  the  offence  is  of  a  very  aggravated  nature,  and  requires 
greater  punishment  than  a  fine  of  seven  dollars  and  one 
month's  imprisonment,  the  justice  may  bind  the  offender 
over  to  the  next  county  court.] 

Qui-tam  for  trespasses  committed  in  the  night  season. 

To  J.  P.  of  Esq.  justice  of  the  peace  for  the  county 
of  comes  A.  B.  of  said  and  complains  as  well  in  the 
name  and  behalf  of  the  state  of  Connecticut  as  in  his  own 
name,  that  one  C.  D.  of  on  the  day  of  at  said 

in  the  night  season  of  said  day,  viz.  about  the  hour  of 
o'clock,  in  a  secret  and  clandestine  manner,  with 
force  and  arms,  did  wantonly,  wilfully  and  maliciously, 
shear  and  cut  off  the  mane  and  tail  of  a  certain  bay  horse, 
the  property  of  the  plaintiff,  whereby  the  same  was  great- 
ly injured  and  rendered  unfit  for  use  for  a  long  time  ;  and 
which  said  wrongdoings  of  the  plaintiff  are  contrary  to  the 
statute  entitled  "  An  act  to  detect  and  punish  trespasses 
committed  in  the  night  season  ;"  and  the  said  complainant 
prays  process  against  the  said  C.  D.  whereby  he  may  be 
arrested  and  brought  before  your  worship,  that  he  may  be 
examined  touching  said  offence  in  the  manner  provided  in 
said  statute,  and  be  dealt  with  in  the  premises  as  to  said 
statute,  and  to  justice  appertaineth. 

A.  B. 

[Warrant,  same  as  in  criminal  cases,  except  that  the  of- 
fender must  be  brought  before  the  same  justice  to  whom 
the  complaint  is  presented,  and  who  issues  the  warrant.  If 
the  complainant  produces  proof  «o  as  to  render  it  probable 
the  accused  did  the  acts  complained  of,  he  must  be  ad- 
judged guilty  unless  he  shall  offer  to  be  examined  on  oath. 
If  he  offers  to  be  sworn  the  justice  must  admit  him  to  his 
oath,  and  if  from  his  testi irony  he  can  satisfy  the  court  that 
he  did  not  commit  the  injury  complained  of,  or  was  not 
aiding  therein,  he  must  be  acquitted  and  recover  his  costs. 
If  he  is  found  guilty,  judgment  is  to  be  rendered  against 


135 

him  for  the  damages  and  the  costs,  but  he  is  not  to  be  fined 
as  was  the  case  before  the  revision  of  the  statutes.] 

Record  of  Judgment. 

At  a  court  holden  &c.  was  brought  before  me,  C.  D.  by 
virtue  of  a  warrant  issued  on  the  complaint  of  A.  B.  for 
that  &c.  [recite  the  charges]  and  being  required  to  answer 
thereto,  the  said  C.  D.  says  he  is  not  guilty  and  puts  him- 
self on  the  court  for  trial  ;  and  having  heard  the  testimo- 
ny introduced  by  the  plaintiff,  and  the  said  C.  D.  refusing 
to  be  examined  on  oath,  touching  said  trespass,  I  do  find 
that  the  said  C.  D.  is  guilty  in  manner  alleged  in  said  com- 
plaint, whereupon  it  is  considered  that  he  pay  to  the  said 
A.  B.  the  sum  of  twenty  dollars  damages  for  said  injury, 
and  the  costs  of  the  prosecution,  taxed  at  ,  and  stand 

committed  until  judgment  be  performed. 

Qin-tam  for  theft. 

To  J.  P.  Esq.  of  justice  of  the  peace  for  the  county 
of  comes  A.  B.  of  and  complains  as  well  in  the 

name  and  behalf  of  the  State  of  Connecticut  as  in  his  own, 
that  on  the  day  of  A.  D.  at  ,  one  C.  D.  of 
with  force  and  arms,  feloniously  did  take,  steal  and  carry 
away  one  ox-chain,  of  the  value  of  three  dollars,  of  the 
property  of  the  said  A.  B.  then  and  there  being,  against 
the  peace,  contrary  to  the  form  of  the  statute  in  such  case 
provided,  and  of  evil  example  :  and  said  complainant  prays 
process  against  the  said  C.  D.  that  he  may  be  arrested  and 
examined  touching  this  complaint,  and  be  dealt  with  there- 
in as  to  law  and  justice  appertaineth. 

A.  B. 

[Warrant  same  as  in  criminal  cases.  The  judgment  will 
be  the  same  as  in  a  public  prosecution  far  theft,  except 
that  damages  are  also  to  be  given  to  the  complainant ;  the 
justice  must  expressly  find  the  value  of  the  property,  and 
give  judgment  that  the  offender  pay  treble  the  amount  to 
the  complainant,  in  addition  to  a  fine,  and  whipping,  when 
the  latter  is  required  by  the  statute.] 


136 
CHAPTER  XIII. 


Pleas  in  abatement. 

1.  To  the  jurisdiction  of  the  court. 

A.  B.  vs.  C.  D.  action  of  assumpsit  on  note  :  the  de- 
iendant  comes  into  court  and  pleads  and  prays  the  opinion 
of  the  court,  whether  it  will  take  cognizance  of  the  plain- 
tiff's said  action  ;  for  that  he  says  the  note  in  and  by  which 
it  is  alleged  the  defendant  assumed  and  promised,  including 
the  interest  which  has  accrued  thereon,  is  of  greater 
amount  than  thirty-five  dollars,  and  the  promise  set  up  and 
alleged  in  the  plaintiff's  said  declaration,  is  to  pay  a  greater 
sum  than  thirty  five  dollars,  which  he  is  ready  to  verify, 
and  hereof  prays  judgment,  &c.  C.  D. 

2.  Abatement  for  defect  in  writ. 

The  defendant  defends,  pleads  and  says,  that  the  plain- 
tiff's said  writ  and  process  ought  to  abate,  and  the  defend- 
ant be  no  longer  held  to  answer  thereto,  for  that,  the  defend- 
ant says  the  plaintiff's  said  writ  was  filled  up  on  the  day 
of  by  M.  S.  then  and  ever  since  a  lawful  constable  of 
the  town  of  and  that  said  writ  was  in  no  otherwise 

drawn  and  filled  up,  than  by  snid  constable,  who  served  the 
same,  which  he  is  ready  to  verify  ;  and  he  prays  judgment 
of  the  plaintiffs  said  writ  and  process,  that  the  same  may 
abate  and  be  dismissed. 

C.  D. 

General  issue  to  an  action  of  Assumpsit,  with  notice  that 
special  matter  will  be  given  in  evidence. 

The  defendant  defends,  pleads  and  says,  that  he  did  not 
assume  and  promise,  in  manner  and  form  the  plaintiff  hath 
alleged,  and  hereof  for  trial  puts  himself  on  the  court. 

A.  B. 

The  plaintiff  will  take  notice  that  on  trial  of  the  above 
action,  under  said  plea,  the  defendant  intends  to  give  in  ev- 
idence the  payment  of  said  note,  wherein  the  plaintiff  de- 
clares the  defendant  assumed  and  promised  &c.  :  (or  that 
he  intends  to  give  in  evidence  the  following  special  matter,) 
viz.  That  on  or  about  the  day  of  the  plaintiff  caus- 
ed the  defendant  to  be  falsely  arrested  and  taken  into  cus- 


137 

tody,  on  a  pretended  writ  of  attachment,  and  demanded  in 
said  writ  the  sum  of  five  hundred  dollars,  under  the  false 
pretence  that  the  defendant  had  slandered  the  character 
of  the  plaintiff ;  and  that  the  said  pretended  writ  of  attach- 
ment was  not  signed  by  any  proper  authority,  and  that  his 
pretended  arrest  was  illegal,  and  his  detention  thereon  false 
imprisonment ;  and  he  was  so  falsely  arrested,  detained  and 
threatened  with  imprisonment  to  oppress  him,  and  extort 
money  from  him,  and  that  whilst  so  falsely  arrested  and 
detained,  and  to  obtain  his  releasement  and  liberty,  he  ex- 
ecuted said  note,  on  which  &c.,  which  the  defendant  saith 
was  obtained  by  duress  of  imprisonment. 

A.  B. 

A  general  notice  is  not  sufficient,  but  it  must  set  out  the 
particular  matter  which  the  defendant  proposes  to  give  in 
evidence.  In  such  state  of  pleadings,  if  the  court  is  of 
opinion  that  the  defendant  did  assume  and  promise,  but 
finds  the  special  matter  contained  in  the  notice  to  be  true, 
as  claimed  by  the  defendant,  the  judgment  however  must 
be  that  the  defendant  did  not  assume  and  promise,  as  that  is 
the  only  issue  formed. 

Of  Several  pleas  in  pursuance  of  the  statute. 

The  defendant  pleads,  defends  and  says,  that  he  did  not 
assume  and  promise,  in  manner  and  form  as  the  plaintiff  has 
alleged,  and  hereof  for  trial  puts  himself  on  the  court. 
And  for  further  plea  in  this  behalf,  leave  of  court  having 
been  obtained,  he  pleads  and  says,  that  of  having  and  main- 
taining his  said  action,  the  plaintiff  ought  to  be  barred,  be- 
cause he  says  that  the  note  on  which  &c.  is  corrupt  and 
usurious,  for  that  he  says,  that  on  or  about  the 
day  of  it  was  corruptly  and  usuriously  agreed  by  and 

between  the  plaintiff  and  defendant,  that  the  plaintiff  should 
loan  to  the  defendant  the  sum  of  dollars  for  the  peri- 

od of  ninety-five  days,  and  that  the  defendant  should  give 
him  for  the  use  and  forbearance  of  said  sum  for  said  time, 
more  than  at  the  rate  of  six  dollars,  for  the  use  and  for- 
bearance of  one  hundred  dollars  for  one  year,  to  wit,  the 
sum  of  five  dollars,  which  said  sum  of  five  dollars  was  and 
is  included  in  said  note  ;  and  that  these  was  and  is  included 
in  said  note  the  sum  of  dollars  and  cents  over  and 
above  the  rate  of  six  dollars,  for  the  forbearance  of  one 
hundred  dollars  for  one  year,  usuriously  and  corruptly,  and 
12* 


138 

that  said  note  was  executed  in  pursuance  of  said  usurious 
and  corrupt  agreement,  and  to  carry  the  same  into  effect ; 
and  that  the  same  is  usurious  and  corrupt,  which  he  is 
ready  to  verify  ;  prays  judgment  &.c. 

And  for  further  plea  in  this  behalf  he  pleads  and  says, 
that  on  the  day  of  A.  D.  and  since  the  said  prom- 
ise alleged  in  the  plaintiff's  said  declaration  is  declared  to 
have  been  made,  the  plaintiff  in  and  by  a  certain  receipt  or 
release  of  that  date,  for  the  consideration  of  dollars 
discharged  and  released  the  defendant  from  all  demands 
whatsoever,  as  by  said  release  or  writing  ready  in  court  to 
be  produced,  may  appear  ;  and  which  he  is  ready  to  ver- 
ify ;  judgment  &c. 

C.  D. 
Replication. 

And  now  the  plaintiff  replies  to  the  defendant's  said  sev- 
eral pleas,  by  him  pleaded,  and  says,  that  as  to  the  defend- 
ant's said  first  plea  he  joins  issue  thereon  ;  and  as  to  the 
defendant's  second  plea,  the  plaintiff  says  that,  on  the 
day  of  the  defendant  borrowed  of  the  plaintiff  the  sum 
of  dollars,  for  the  period  of  ninety-five  days,  when  it 
was  agreed  by  said  parties,  that  the  defendant  was  to  pay 
the  plaintiff  for  the  use  and  forbearance  of  said  money,  af- 
ter the  rate  of  six  dollars  for  the  forbearance  of  one  hun- 
dred dollars,  for  one  year,  and  no  more  ;  and  that  in  pur- 
suance of  said  agreement  the  defendant  executed  a  note 
for  said  sum  of  ,  payable  in  ninety-five  days  from- the 
said  day  of  ,  and  which  is  the  same  note  on 

which  &c.  without  that,  that  the  said  note  on  which  &c.  was 
given  in  pursuance  of  a  corrupt  and  usurious  contract, 
and  upon  a  corrupt  and  usurious  consideration,  and  that 
there  is  included  in  the  same,  corruptly  and  usuriously,  the 
sum  of  dollars  and  cents,  for  the  use  and  forbear- 
ance thereof,  more  than  at  the  rate  of  six  dollars  for  the 
forbearance  of  one  hundred  dollars  for  one  year,  and  this 
he  is  ready  to  verify  :  prays  judgment.  And  as  to  the 
third  plea,  by  the  defendant  pleaded,  the  plaintiff  says  he 
ought  not  to  be  barred  any  thing  alleged  therein  notwith- 
standing, because  he  says  that  previously  to  the  date  and 
execution  of  said  discharge,  pleaded  by  the  defendant,  viz. 
on  or  about  the  day  of  ,  the  note  on  which  kc. 

had  been  assigned  and  transferred  by  the  plaintiff,  to  one 


E.  F.  for  a  valuable  consideration,  and  notice  of  such  as- 
signment given  to  the  defendant  previous  to  the  execution 
of  said  discharge,  viz.  on  or. about  the  day  of  at 

,  and  the  plaintiff  says  that  the  defendant  obtained  said 
discharge,  with  a  full  knowledge  of  the  fact,  that  said  note 
had  been  assigned  as  aforesaid,  for  a  valuable  consideration, 
and  with  intent  to  defeat  the  collection  cf  said  note  and 
defraud  the  said  E.  F.  of  the  same,  which  he  is  ready  to 
verify  :  judgment  &c. 

A.  B. 
Rejoinder. 

And  now  the  defendant  rejoins  to  the  replication  of  the  plain- 
tiff and  says,  that  as  to  the  second  plea,  by  him  pleaded,  the 
note  on  which  &x.  is  usurious  and  corrupt,  that  it  was  cor- 
ruptly agreed  between  the  plaintiff  and  the  defendant  on 
the  day  of  that  the  defendant  should  pay  the  plain- 

tiff for  the  use  and  forbearance  of  the  sum  of  dollars 

ninety-five  days,  the  sum  of  five  dollars,  and  that  the  note 
on  which  &x.  was  executed  in  pursuance  of  said  corrupt 
agreement  and  upon  said  usurious  consideration,  and  that 
there  is  contained  in  said  note  usuriously  and  corruptly  the 
sum  of  dollars  and  cents,  and  hereof  puts  him- 

self on  the  court.  And  as  to  the  replication  of  the  plain- 
tiff so  far  as  relates  to  the  third  plea  by  the  defendant 
pleaded,  he  says  that  the  plaintiff  ought  to  be  barred,  with- 
out that,  that  previous  to  the  execution  of  said  discharge,  on 
or  about  the  day  of  the  note  on  which  &,c.  was  assigned, 
bonafide^  and  for  a  valuable  consideration  by  the  plaintiff 
to  the  said  E.F.  and  without  that,  that  at  the  time,  or  previous 
to  the  executions  of  said  discharge  the  plaintiff  had  notified 
the  defendant  of  said  assignment  which  he  is  ready  to  ver- 
ify :  judgment  &c.  C.  D. 

Sur -rejoinder. 

And  the  plaintiff  sur-rejoins  to  the  rejoinder  of  the  de- 
fendant and  joins  in  the  issue  tendered  as  to  the  second 
plea  of  the  defendant  ;  and  as  to  the  defendant's  rejoinder 
relating  to  the  third  plea,  the  plaintiff  says,  that  previous 
to  the  date  and  execution  of  said  discharge,  the  note  on 
which  &c.  had  been  assigned  by  the  plaintiff  to  the  said 
E.  F.  bona  fide,  and  for  a  valuable  consideration,  and  also 
that  previous  to  the  execution  of  said  discharge,  the  said 
E.  F.  notified  the  defendant  of  the  assignment  of  said  note, 


140 

and  that  the  same  was  his   property,  and  hereof  for  trial 
puts  himself  on  the  court.  A.  B. 

And  the  defendant  does  likewise.  C.  D. 

Record  of  Judgment. 

At  a  court  &c.  A.  B.  against  C.  D.  action  of  assunopsit 
on  note,  demanding  thirty  five  dollars  damages  ;  the  par- 
ties appeared  and  the  defendant  pleads,  first,  that  he  did 
not  assume  and  promise,  as  alleged  ;  and  with  'leave  of 
court  further  pleads,  that  the  note  on  which  &c.  was  a 
corrupt  and  usurious  note  give  in  pursuance  of  a  usurious 
agreement,  and  that  there  is  usuriously  included  therein, 
the  sum  of  dollars  and  cents,  more  than  at  the  rate 
of  six  dollars  for  the  forbearance  of  one  hundred  dollars, 
for  one  year,  and  further  pleads  a  general  release  and  dis- 
charge of  all  demands  executed  subsequently  to  said  note  ; 
the  plaintiff  replies  to  the  plea  of  the  defendant  and  joins  in 
the  issue  tendered  in  the  first  plea  ;  and  as  to  the  second 
traverses  the  facts  alleged  therein  ;  and  as  to  the  third  plea, 
he  says,  that  previous  to  the  execution  of  said  discharge, 
the  note  on  which  &c.  had  been  assigned  to  E.  F.  and  no- 
tice there*  f  given  to  the  defendant  prior  to  the  execution 
of  said  discharge  ;  and  the  defendant  rejoins  to  the  repli- 
cation of  the  plaintiff  and  affirms  over  his  second  plea  and 
puts  himself  on  the  court  ;  and  as  to  the  replication  of  the 
plaintiff  so  far  as  relates  to  the  third  plea,  the  defendant 
traverses  the  facts  alleged  therein  of  the  assignment  of  said 
note  and  notice  thereof,  and  prays  judgment  ;  the  plaintiff 
sur-rejoins  to  the  rejoinder  of  the  defendant,  and  joins  in 
the  issue  tendered  as  to  the  second  plea ;  and  as  to  the 
third  plea,  he  affirms  over  the  facts  alleged  in  his  said  re- 
plication as  to  the  assignment  of  said  note  and  notice,  and 
puts  himself  on  the  court ;  and  the  defendant  does  likewise, 
as  by  the  pleadings  on  file  may  more  fully  appear  ;  and 
having  heard  the  parties  I  find  the  first  issue  for  the  plain- 
tiff, that  the  defendant  did  assume  and  promise,  and  I  also 
find  the  second  and  third  issues  for  the  plaintiff,  whereupon 
it  is  considered  &:c.  or  I  find  the  first  and  second  issues  for 
the  plaintiff,  but  find  the  third  issue  for  the  defendant,  that 
at  or  previous  to  the  execution  of  said  discharge,  he  had 
not  been  notified  of  the  assignment  of  said  note,  and  there- 
upon it  is  considered  that  the.  defendant  recover  his  costs  Stc. 


141 

General  issue  and  notice  of  set-off'  to  action  on  note. 
The  defendant  defends,  pleads  and  says,  that  he  did  not 
assume  and  promise  in  manner  and  form  the  plaintiff  hath 
alleged.  C.  D. 

The  plaintiff  will  please  to  take  notice,  that  on  the  trial 
of  this  action  it  is  proposed  under  the  above  plea  to  give 
in  evidence  a  set  off ;  for  that  the  defendant  says,  that  at 
the  date  and  issuing  of  the  plaintiff's  said  writ,  the  plainliff 
was  and  now  is  indebted  to  the  defendant  on  book,  in  a 
greater  sum  than  the  amount  due  on  the  note  on  which  &c. 
viz.  the  sum  of  sixty  dollars,  and  that  the  plaintiff's  said 
debt  secured  by  said  note  and  the  defendant's  claim  on 
book  are  mutual  debts,  that  the  plaintiff  is  wholly  insolvent, 
and  that  he  has  always  been  willing  and  ready,  and  is  now 
ready  and  offers  to  set-off  his  said  debt  or  claim  on  book, 
against  the  said  note  of  the  plaintiff;  and  the  defendant 
says  that  the  sum  due  him  on  book  exceeds  the  sum  due 
from  him  to  the  plaintiff'  on  said  note  the  sum  of  thirty 
dollars,  which  he  claims  to  recover  and  his  costs. 

C.  D. 

General  issue  in  an  action  of  Trespass  against  several. 

The  defendants  in  court  severally  defend,  plead  and  say, 
that  they  are  not  guilty  in  manner  and  form  as  the  plaintiff 
hath  alleged,  and  hereof  severally  put  themselves  for  trial 
on  the  court.  A.  B. 

C.  D. 
Judgment. 

At  a  court  holden  &c.  J.  S.  against  A.  B.  and  C.  D.  in 
an  action  of  trespass  for  taking  and  carrying  away  the  plain- 
tiff's goods  ;  the  defendants  severally  plead  not  guilty,  and 
put  themselves  on  the  court  for  trial,  and  the  plaintiff  does 
likewise,  as  may  more  fully  appear  by  the  pleadings  on 
file  ;  and  having  fully  heard  the  said  parties,  I  do  find  that 
the  said  A.  B.  is  not  guilty  of  the  wrong  alleged  against 
him  in  the  plaintiff's  declaration,  and  do  further  find  that 
said  C.  D.  is  guilty  in  manner  and  form,  as  is  alleged  in  the 
plaintiff's  declaration,  and  also  find  that  the  plaintiff  is  dam- 
aged by  the  said  trespass  and  wrong  of  the  said  C.  D.  tin- 
sum  of  dollars  ;  whereupon  it  is  considered  that  the 
plaintiff  recover  of  the  said  C.  D.  the  sum  of  dollars 
damages,  and  his  costs  of  suit,  taxed  at  ,  and  that  exe- 


142 

cution  issue  therefor  ;  and  it  is  further  considered,  that 
the  said  A.  B.  recover  of  the  pi  u'ntiff  his  costs,  taxed  at 
and  that  execution  issue  therefor  accordingly. 

Demurrer. 

And  the  plaintiff  says,  that  the  defendant's  said  plea,  and 
the  matters  therein  contained,  are  insufficient  in  the  law, 
judgment  &c.  A.  B. 

And  the  defendant  says  his  said  plea,  and  the  matters 
therein  contained,  are  sufficient  in  the  law.  judgment,  &,c. 

C.  D. 

Special  Demurrer. 

And  the  plaintiff  says  that  the  said  plea  of  the  defendant, 
and  the  matters  therein  contained,  are  insufficient  in  the 
law,  and  for  causes  of  demurrer  the  plaintiff  says,  that  said 
plea  is  informal,  and  double,  and  that  it  amounts  to  the  gen- 
eral issue  and  nothing  more  :  and  prays  judgment  ice. 

A.  B. 

Judgment  by  confession. 

A  justice  may  take  a  confession  of  judgment  to  the  a- 
aiount  of  seventy  dollars 

On  Book. 
H         county  ss.  H  day  of  A.  D. 

You  A.  B.  of  confess  and  acknowledge  yourself  to 

owe  and  be  indebted  unto  C.  D.  in  the  sum  of  dollar? 

en  book,  to  balance  book  accounts,  and  hereby  acknowl- 
edge a  judgment  against  yourself  in  favour  of  the  said  C. 
D.  for  that  sum,  and  for  twenty-five  cents  costs,  before 
me  ;  whereupon  it  is  considered  that  the  said  C.  D.  recov- 
er of  the  said  A.  B.  the  sum  of  dollars  damages,  and 
the  sum  of  twenty-five  cents  costs,  and  that  execution  issue 
therefor  accordingly. 

J.  P.  Justice  of  the  Peace. 

On  Note. 

You  A.  B.  of  ,  confess  and  acknowledge  that  you  are 
justly  indebted  on  the  within  note,  [where  the  judgment 
is  made  on  the  back  thereof]  in  the  sum  of  seventy  dol- 
lar?, [or,  if  the  record  is  not  made  on  the  note,  say  in  a 
certain  note,  dated  Sic.  describe  the  note,]  and  hereby  ac- 
knowledge a- judgment  against  yourself  in  favour  of  said 
C.  D.  for  that  sum,  and  for  tweniy-five  cents  costs,  before 
me  :  whereupon  it  is  considered  that  the  said  C.  D.  re- 


i43 

cover  of  the  said  A.  B.  the  sum  of  seventy  dollars  dama- 
ges and  the  sura  of  twenty-five  cents  costs,  and  that  execu- 
tion issue  therefor  &.c. 

Execution,  same  as  in  other  cases,  except  that  it  should 
be  stated  that  A.  B.  of  recovered  judgment  against  C. 
D.  of  upon  his  acknowledgment  and  confession,  before 

J.  P.  Esq.  &c.  ;  so  that  it  may  appear  upon  what  authority 
a  justice  of  the  peace  rendered  a  judgment  and  issues  an 
execution  for  a  greater  sum  in  damages  than  thirty-five  dol- 
lars. 


CHAPTER  XIV. 

Of  the  judicial  powers  and  duties  of  Justices  of  the  Peace 
of  a  criminal  nature,  ' 

The  power  of  Justices  of  the  Peace  in  criminal  matters 
consists  of  authority  to  cause  arrests  in  all  cases,  to  try  and 
sentence  for  certain  crimes  of  which  they  have  jurisdiction, 
and  to  examing  and  recognize  to  the  higher  courts  for  of- 
fences where  they  have  not  jurisdiction,  and  also  in  certain 
cases  to  order  offenders  to  give  bonds  to  keep  the  peace,  and 
for  their  good  behaviour.  In  examining  the  executive  du- 
ties of  Justices  we  noticed  their  power  of  granting  war- 
rants, and  need  only  add  here,  that  a  Justice  of  the  Peace 
is  authorized  to  grant  a  warrant  to  arrest  and  bring  b  :fore 
himself  or  any  other  justice  of  the  county,  all  persons 
charged  with  the  commission  of  a  crime,  of  however  high 
a  nature,  that  he  may  be  examined  and  dealt  with  accord- 
ing to  law.  All  officers  of  the  government,  whether  of  the 
state  or  the  nation,  in  the  militia,  army  or  navy,  must  sub- 
mit to  the  authority  of  a  Justice's  warrant,  legally  issued 
upon  the  complaint  of  an  informing  officer,  stating  the  cause 
of  the  arrest.  A  justice  may  direct  his  warrant  to  an  in- 
different person  to  be  served  in  any  part  of  this  state,  or 
to  a  proper  officer,  to  be  served  within  his  precincts  (a). 

In  criminal  cases  there  is  no  limitation  of  the  authority 
of  a  Justice,  as  to  persons  ;  it  is  of  no  consequence  who 
the  offender  is,  or  where  he  belongs  ;  the  only  limitation 
is  from  the  location  of  the  crime.  It  is  a  gre  it  principle 
of  the  common  law,  which  has  been  adopted  in  this  State, 
(a)  St.  seas.  1822. 


144 

and  every  where  else,  where  the  common  law  of  England 
has  been  introduced,  that  crimes  must  be  punished  where 
they  are  committed.  This  principle  is  founded  primarily 
upon  the  consideration  that  the  offender  must  be  punished 
by  the  laws  of  that  community  which  have  been  violated, 
and  part  from  considerations  of  humanity,  as  it  is  thought 
but  reasonable  that  persons  accused  of  crimes,  should  be 
tried  where  they  were  committed,  and  where  they  may  be 
supposed  to  be  best  known.  In  this  State  all  crimes  must 
be  punished  in  the  county  where  they  were  committed, 
except  theft,  which  may  be  punished  either  where  the 
crime  was  committed  or  in  any  county  where  the  criminal 
may  carry  the  stolen  property,  and  the  crime  of  bigamy, 
which  may  be  tried  where  the  parties  are  apprehended. 
If  a  person  is  maliciously  stricken  or  poisoned  in  one  county 
and  dies  in  another  within  a  year,  he  must  be  tried  in  the 
county  where  the  stroke  or  poison  was  given.  A  Justice 
can  only  grant  a  warrant  to  arrest  within  his  county,  for 
crimes  committed  therein,  but  his  warrant  is  sufficient  au- 
thority to  arrest  in  such  cases  in  any  part  of  the  state,  if 
the  criminal  flees  out  of  the  county  (6).  A  justice  has  no 
more  authority  to  grant  a  warrant  to  arrest  a  person  for  a 
crime  committed  out  of  his  county,  triable  by  the  county 
or  superior  court,  and  to  bind  such  offender  over  for  trial, 
than  he  has  for  crimes  of  which  he  has  jurisdiction. 

A  Justice  has  jurisdiction  of  all  offences  committed  with- 
in his  county,  punishable  by  fine  or  forfeiture,  not  exceed- 
ing seven  dollars.  This  is  the  general  extent  of  his  crim- 
inal jurisdiction,  but  by  particular  statutes  it  is  extended  ; 
in  case  of  theft  he  has  jurisdiction,  where  the  property 
stolen  is  of  the  value  of  thirty  dollars,  and  may  inflict  a 
fine  of  seven  dollars,  order  the  offender  to  be  whipped,  and 
sentence  him  to  pay  treble  the  value  of  the  property  stol- 
en, to  the  party  injured,  where  he  brings  forward  a  suit  in 
his  own  name,  and  that  of  the  state  ;  in  a  prosecution  for 
breach  of  the  peace,  the  offender  may  be  fined  seven  dol- 
lars and  sentenced  to  be  imprisoned  in  the  count}'  gaol  not 
exceeding  one  month.  In  all  cases  of  qui-tam  informations 
where  there  is  a  fine  to  the  public,  damages  are  also  to  be  giv- 
en to  the  party  injured.  The  jurisdiction  of  a  Justice  is  not 
final  and  conclusive  in  criminal  matters,  except  for  the 
crimes  of  drunkenness,  profane  swearing  and  cursing,  and 
(6)  St.  171. 


breach  of  sabbath  ;  in  all  other  cases  an  appeal  lies  to  the 
county  court,  and  the  right  of  appeal  is  the  same  whether 
the  process  is  a  complaint  of  an  informing  officer,  or  qui- 
tam  information.  A  writ  of  error  may  also  be  brought 
upon  the  judgment  of  a  justice  in  all  criminal  cases,  to  the 
superior  court,  for  any  error  apparent  upon  the  record, 
the  same  as  in  civil  cases.  In  all  cases  where  a  justice 
has  not  cognizance  of  the  offence,  and  can  not  proceed  to 
pass  sentence  upon  the  offender,  he  must  bind  him  over 
as  it  is  called,  to  the  court  having  jurisdiction  of  the  of- 
fence. This  is  an  important  branch  of  the  authority  of 
Justices  of  the  Peace  and  should  be  exercised  with  much 
discretion.  They  are  not  to  decide  upon  the  guilt  of  the 
accused,  this  belongs  to  the  court  and  jury  having  final 
jurisdiction  of  the  offence.  The  statute  provides  that  in 
such  cases,  the  Justice  shall  inquire  into  the  facts  charg- 
ed, and  if  he  shall  be  of  opinion  that  probable  ground  ex- 
ists to  support  the  complaint  he  may  order  the  accused  to 
enter  into  a  recognizance  with  surety  for  his  appearance 
before  the  court  having  jurisdiction  of  the  crime.  If  he 
acquits  a  person  against  whom  there  exists  probable 
grounds  of  his  guilt,  he  takes  the  case  away  from  the  court 
having  jurisdiction,  and  from  a  jury,  which  is  the  proper 
tribunal  in  all  matters  of  fact,  particularly  those  of  a  crim- 
inal nature,  and  decides  upon  the  guilt  of  the  accused 
himself,  although  he  has  no  jurisdiction  of  the  offence  ; 
and  on  the  other  hand,  if  he  binds  over  persons  where  the 
evidence  is  slight,  and  where  no  probable  cause  exists,  he 
often  does  a  serious  injury  to  the  accused  and  subjects  the 
public  to  unnecessary  expense.  The  duty  of  a  magistrate 
in  such  cases  has  been  considered  as  analogous  to  that  of 
a  grand-jury  ;  he  is  not  to  try  the  accused,  but  to  inquire 
into  the  matter,  and  decide  whether  there  is  probable 
grounds  of  his  guilt,  so  that  he  ought  to  be  held  for  trial. 
It  is  provided  by  statute  that  any  Justice  of  the  Peace, 
from  his  personal  knowledge  may  ex  officio  require  sureties 
of  the  peace  and  good  behaviour  of  any  person,  who  threat- 
ens to  beat  or  kill  another,  or  contends  with  hot  and  an- 
gry words,  or  by  threats,  turblence  and  violence,  or  any 
other  unlawful  act,  terrifies  and  disturbs  the  good  people 
of  the  state  (a).  This  authority  to  order  bonds  to  keep 

(a)  St.  147. 
13 


146 

the  peace  by  a  justice  ex-officio  does  not  seem  consistent 
with  another  statute  (6),  which  provides  that  no  judgment 
shall  be  rendered  for  any  offence  except  for  drunkenness, 
profane  swearing,  and  hreach  of  sabbath,  without  a  previ- 
ous complaint  and  warrant,  not  even  on  personal  view  or 
confession.  It  would  be  safest  in  such  cases  for  the  ma- 
gistrate to  cause  a  complaint  to  be  made  and  signed.  When 
any  individual  shall  complain  on  oath  to  a  Justice  of  the 
Peace  against  any  person  that  he  has  just  cause  to  fear 
that  he  will  imprison,  beat  or  kill  him,  or  procure  others 
to  do  so,  and  that  he  is  under  fear  of  death  or  bodily  harm, 
such  justice  may  require  sureties  of  the  peace  and  good 
behaviour  of  the  person  complained  of,  and  on  his  failure 
to  procure  the  same,  may  commit  him  to  gaol,  there  to 
remain  till  the  next  county  court,  or  until  he  is  otherwise 
legally  discharged  (c).  The  provisions  of  this  statute  are  on- 
ly in  confirmation  of  the  common  law.  Surety  of  the 
peace  may  be  demanded  by  all  persons  having  legal  dis- 
cretion ;  by  a  wife  against  her  husband,  who  may  threaten 
to  beat  or  kill  her  ;  and  even  by  a  husband  against  his 
wife,  for  like  causes  (d).  Surety  of  the  peace  may  be 
granted  against  all  persons  of  legal  discretion,  against  mi- 
nors and  femes  covert,  or  married  women  ;  but  in  such 
cases  they  can  not  become  bound  themselves,  but  must  be 
ordered  to  become  bound  by  surety,  and  in  case  of  failure. 
>rocure  the  same,  must  be  committed.  It  can  not  be 
lercd  against  an  idiot  or  a  person  non  compos  mentis. 
All  persons  who  actually  break  the  peace  by  assaulting  or 
beating  another,  or  by  threatening  to  kill  or  beat  another, 
or  who  go  armed  offensively,  or  appear  with  an  unusual 
number  of  attendants,  to  the  terror  of  the  people,  may  be 
required  to  give  sureties  of  the  peace,  on  complaint  of  a 
proper  intorming  officer.  Challenging  to  fight  or  quarrel, 
is  a  cause  for  binding  to  keep  the  peace,  and  to  good  be- 
haviour ;  and  threatening  to  burn  or  destroy  the  property 
of  another,  as  well  as  threatening  to  injure  their  persons  ; 
persons  guilty  of  an  affray,  may  also  be  bound  to  keep  the 
peace. 

If  any  person  shall  break  the  peace  by  assaulting  or  beat- 
ing another,  or  by  tumultuous  and  offensive  carriage,  threat- 

?&)  St.  172.  (c)  St.  14B.  (d)  Hawk.  P.  C.  253. 


to  pr 
orde 


147 

turns,  traducing,  quarrelling,  or  challenging  any  person,  n 
the  presence  of  a  constable,  he  mny  arrest  him,  and  bring 
him  before  a  Justice  of  the  Peace,  but  the  Justice  can  not 
order  him  to  procure  sureties  of  the  peace,  without  a 
complaint  and  warrant,  charging  him  with  the  offence. 
Surety  for  good  behaviour  may  be  required  of  common 
drunkards,  idlers,  common  cheats,  common  thieves  and 
gamblers,  prostitutes,  and  common  whore-mongers,  such 
a.-  raise  the  hue  and  cry,  without  cause,  or  lie  in  wait  to 
rob  (e). 

Justices  of  the  Peace  have  authority  on  complaint  or  in- 
formation of  the  District  Attorney  for  the  district  of  Con- 
necticut, to  inquire  into  offences  against  the  laws  of  the 
United  States,  committed  within  the  district  or  upon  the 
high  seas,  by  any  person  coming  into  the  district,  and  to 
bind  them  to  the  circuit  court  for  trial. 


CHAPTER  XV. 

OF.    PROCESS     AND     TRIAL. 

fn  criminal  cases  the  process  consists  of  a  complaint  or 
information  and  warrant.  Grand-jurors  are  the  proper  in- 
form ing  officers,  but  constables  and  tything-men,  may  act 
as  such,  in  case  of  offences  against  the  laws  relating  to 
the  sabbath  and  disturbing  public  worship.  Grand-jurors 
are  town  officers,  and  can  only  make  complaint  of  offences 
committed  within  their  respective  towns  ;  if  a  person 
commits  a  crime  in  pne  town  and  goes  into  another  in  the 
same  county,  he  can  not  be  informed  against  by  a  grand- 
juror  of  the  latter  town.  The  complaint  too  of  a  grand- 
juror  can  only  be  presented  to  a  Justice  of  the  town  where 
the  grand-juror  belongs.  Constables,  if  they  act  as  inform- 
ing officers,  are  also  confined  to  their  town.  If  any  grand- 
juror  refuses  to  make  complaint  of  any  crime  committed 
within  the  town,  that  comes  to  his  knowledge,  he  forfeits 
two  dollars.  The  several  grand-jurors  of  each  town  of 
which  there  can  not  be  less  than  two,  nor  more  than  swr, 

(0  Burns'  Just.  243,  4.— Statutes  250. 


may  meet  when  they  think  proper  to  advise  concerning 
breaches  of  the  peace,  and  'inquire  after  offences,  and  make 
complaint  of  the  same.  They  are  authorized  to  summon 
persons  to  appear  before  them  as  witnesses  ;  and  if  they 
refuse,  to  procure  a  capias  and  compel  them. 

The  attorneys  for  the  State  may  also  act  as  informing  of- 
licers  before  justices,  andean  make  complaint  of  all  crimes 
committed  in  any  town  in  the  county,  and  to  an}' justice  of 
the  peace  of  the  county. 

A  complaint  may  also  be  made  by  a  private  person  for 
sureties  of  the  peace  and  good  behaviour,  where  he  has 
just  cause  to  fear  that  another  will  imprison,  beat  or  kill 
him,  or  procure  others  to  do  it,  or  where  he  is  under  fear 
of  death  or  bodily  harm  ;  but'in  such  cases  he  must  make 
oath  to  the  truth  of  the  complaint,  which  must  be  certified 
thereon  by  the  justice. 

The  complaint  contains  a  statement  of  the  crime,  charg- 
ed in  proper,  legal  language,  the  time  and  place  of  its  com- 
mission, and  concludes  with  praying  that  the  offender  may 
be  arrested  and  examined,  and  must  be  signed  by  the  grand- 
juror.  A  warrant  is  issued  by  the  justice  annexed  to  the 
complaint,  directed  to  a  proper  officer,  commanding  the 
arrest  of  the  person  accused,  and  that  he  be  brought  be- 
fore himself,  or  some  other  justice  of  the  peace  of  the 
county,  that  he  may  be  examined  touching  the  crime  charg- 
ed in  the  complaint,  and  be  dealt  with  according  to  law. 
For  the  crimes  of  drunkenness,  profane  swearing  and 
cursing,  and  breach  of  sabbath,  of  which  a  justice  of  the 
peace  or  constable  has  personal  view,  the  offenders  may 
be  arrested  and  fined  without  any  complaint  or  process, 
but  for  no  other  offence  can  a  justice  pass  sentence,  or  ren- 
der a  judgment  without  a  complaint  and  warrant.  There 
are  qui-tam  complaints  or  informations  or  which  we  have 
already  spoken. 

2.  Of  Trial  in  Criminal  Cases. 

Trials  in  criminal  cases  are  essentially  the  same  as  in  civ- 
il. The  prisoner  must  be  arraigned,  or  the  complaint  pub- 
licly read  to  him,  and  he  then  required  to  plead  or  answer 
to  the  same  ;  and  in  all  cases  he  must  either  plead  guilty 
or  not  guilty.  If  he  pleads  guilty  the  justice  proceeds  to 
pass  sentence,  or  orders  bonds  for  his  appearance  before 


149 

the  court  having  jurisdiction,  as  the  case  may  require  ;  if 
he  pleads  not  guilty  the  court  proceeds  to  inquire  into  the 
charges  alleged  in  the  complaint.  If  the  prisoner  is  a  min- 
or the  justice  must  appoint  a  guardian  to  defend  him,  in  the 
prosecution,  and  advise  him  how  to  plead.  This  must  be 
done  before  he  pleads,  and  an  entry  of  the  appointment 
made  on  the  file.  In  criminal  cases,  the  rules  of  evidence 
are  the  same  as  in  civil,  except  that  depositions  are  not 
admissible  ;  nor  can  they  be  admitted  in  qui-tam  informa- 
tions, where  corporeal  or  other  punishment  is  inflicted  (e)  j 
and  that  in  capital  offences  the  testimony  of  at  least  two 
witnesses  is  required,  or  that  which  is  equivalent  thereto. 
When  a  case  is  adjourned,  a  practice  has  prevailed  of  re- 
turning the  process  to  the  officer,  by  virtue  of  which,  to 
hold  the  prisoner  ;  but  this  is  incorrect,  for  after  the  pris- 
oner has  been  brought  before  the  court  and  the  officer 
made  his  indorsement,  the  warrant  has  been  executed  and 
can  give  no  authority  to  detain  the  prisoner.  The  regu- 
lar mode  is  to  order  him  to  enter  into  recognizance  ;  and 
if  he  refuses  or  is  unable  to  procure  surety,  he  must  be 
committed,  or  the  justice  may  give  a  written  or  verbal 
order  to  an  officer  to  take  him  into  his  custody,  and  have 
him  forthcoming  ;  but  he  should  retain  the  process  in 
his  hands  as  the  grounds  of  his  own  authority  ;  but  in 
cases  not  bailable,  no  recognizance  can  be  taken. 

Judgment. 

Where  the  court  have  jurisdiction  they  must,  as  in  civil 
cases,  find  the  issue  either  that  the  prisoner  is,  or  is  not 
guilty,  and  in  the  latter  case  proceed  to  render  judgment, 
according  to  law.  A  warrant  must  then  be  issued  to  carry 
the  judgment  into  execution,  containing  a  command  to  a 
proper  officer,  to  inflict  the  punishment,  levy  the  fine  and 
costs,  or  to  commit  to  prison,  the  offender.  In  cases  of  in- 
quiry where  the  justice  has  not  jurisdiction,  if  he  finds 
that  the  prisoner  is  guilty,  or  rather  that  there  is  probable 
groands  to  support  the  complaint,  he  must  order  him  to 
become  bo'ynd  in  a  recognizance,  with  sufficient  surety, 
that  he  appear  before  the  court  having  cognizance  of  the 
crime,  at  it*!  next  term.  Where  the  superior  court  has 

fe)  Swift's  Ev.  144. 
13* 


140 

cognizance  of  the  offence,  and  the  prisoner  is  bound  to  ap- 
pear before  that  court,  the  recognizance  should  be  taken 
to  the  treasurer  of  the  State  ;  when  he  is  bound  to  the 
county  court,  il  must  be  taken  to  the  treasurer  of  the 
county.  There  can  be  no  fixed  rules  as  to  the  amount  of 
bonds  ;  this  must  depend  upon  circumstances  ;  the  natura 
of  the  crime,  the  situation  and  pecuniary  circumstances  of 
the.  prisoner,  the  certainty  or  doubtfulness  of  his  guilt  ; 
but  the  sum  ought  to  be  reasonable  having  reference  to 
the  circumstances  of  the  case,  as  the  constitution  provides 
that  excessive  bail  shall  not  be  required.  The  object  of 
bail  is  to  favour  personal  liberty,  and  whilst  on  the  one 
hand  proper  regard  is  to  be  paid  to  this  object,  on  the  oth- 
er it  must  not  be  forgotten,  that  the  security  of  the  pub- 
lic is  the  primary  object  of  all  punishment,  and  if  such 
bonds  were  not  required  as  would  be  likely  to  hold  the 
prisoner  to  trial,  the  object  of  the  law  would  be  defeated, 
rogues  after  they  were  within  the  reach  of  justice  be  suf- 
fered to  escape,  and  society  exposed  to  their  depredations. 
Of  Commitment. 

If  the  prisoner  refuses  or  is  unable  to  procure  bonds,  or 
in  cases  hot  bailable,  he  must  be  committed  to  gaol  to 
await  his  trial.  This  is  done  by  authority  of  a  mittimus 
or  warrant  of  commitment,  which  contains  a  recital  of  the 
cause  of  commitment,  and  a  command  to  the  officer  to  con- 
vey and  deliver  the  prisoner  into  the  custody  of  the  keep- 
er of  the  gaol  of  the  county,  and  also  a  command  to  such 
keeper  to  receive  him  into  such  gaol,  to  be  kept  therein, 
until  discharged  by  due  course  of  law. 
Of  Fines  and  Costs. 

All  fines,  penalties,  and  forfeitures,  not  otherwise  dis- 
posed of  by  law,  imposed  on  any  person  by  a  justice  of 
the  peace,  belong  to  the  treasury  of  the  town  wherein  the 
offence  was  committed.  When  a  part  of  a  fine  or  pen- 
alty is  given  to  a  common  informer,  or  to  the  person  in- 
jured, and  part  to  some  public  treasury,  unless  a  qui-tam 
suit  has  been  commenced,  a  prosecution  may  be  brought 
by  an  informing  officer,  in  which  case  the  rvhole  fine  or 
penalty  will  belong  to  such  public  treasury.  The  treas- 
urers of  towns  have  power  to  receive  all  moneys  belong- 
ing to  towns  for  fines,  forfeitures  and  penalties. 


151 

In  criminal  prosecutions,  costs  are  not  taxed  against  tin 
public,  when  the  prisoner  is  acquitted,  in  his  favour  ;  but 
the  costs  on  the  part  of  the  prosecution  are  taxed  against 
the  public.  Where  the  prisoner  is  convicted,  costs  are  al- 
ways taxed  against  him,  and  are  to  be  paid  before  he  is 
discharged  ;  but  if  the  same  can  not  be  obtained  of  him  or 
out  of  his  estate  they  are  to  be  paid  out  of  the  treasury 
of  the  town  wherein  the  prosecution  is  had  ;  and  if  the 
same  shall  afterwards  be  recovered  of  the  person  convic- 
ted, they  shall  be  paid  into  the  treasury  of  the  same  town. 
The  justice  can  immediately  draw  an  order  for  thp  amount 
of  the  bill  of  costs,  and  it  is  his  duty  to  pay  it  out  to  those 
who  are  entitled  to  receive  it. 

in  all  cases  where  a  justice  of  the  peace  has  juris- 
diction and  renders  final  judgment,  the  prisoner  can  not  be 
discharged  until  the  judgment  has  been  complied  with,  in- 
cluding payment  of  the  costs,  and  this  is  a  part  of  the 
sentence. 


CHAPTER  XV. 

FORMS    IN    CRIMINAL    CASES. 

We  shall  not  in  general  define  the  different  crimes,  as 
our  limits  would  not  admit ;  neither  would  it  be  of  any  par- 
ticular use  in  a  work  of  this  kind,  as  questions  of  law,  as 
to  whether  a  crime  charged  has  been  committed  can  sel- 
dom arise,  and  xvhen  they  do,  if  attended  with  doubt  or  dif- 
ficulty, and  in  cases  of  inquiry,  it  is  most  proper  the  justice 
should  send  the  cause  to  the  court  having  jurisdiction. 
We  will  however  make  a  few  observations  as  to  crimes  in 
general. 

There  is  one  important  distinction  between  crimes  arid 
civil  injuiries  ;  the  former  require  the  concurrence  of  the 
will,  and  the  intent  with  which  the  act  is  done,  is  the  char- 
acteristic feature  of  a  crime  ;  there  must  be  a  criminal  in- 
tention as  well  as  an  unlawful  act.  No  person  therefore, 
who  does  not  possess  a  sound  mind,  or  legal  discretion  can 
be  guilty  of  a  crime,  nor  can  a  crime  be  committed  where 
the  act  is  done  by  mistake,  accident  or  compulsion.  Idiots. 


lunatics,  and  persons  non  compos  mentis,  being  without  un- 
derstanding cannot  commit  crimes.  A  lunatic,  however, 
during  his  lucid  intervals,  may  commit  and  be  punished  for 
crimes.  As  to  infants,  the  law  is,  that  under  the  age  of 
seven  years,  they  are  incapable  of  committing  crimes  :  at 
fourteen,  which  is  the  period  of  legal  discretion,  they  are 
as  much  responsible  for  their  criminal  acts  as  any  other 
persons  ;  but  between  these  two  ages  is  a  doubtful  period, 
yet  the  law  presumes  that  they  are  incapable,  and  in  order 
to  make  them  responsible  and  punishable  for  criminal  acts, 
it  must  be  proved  that  they  have  understanding  and  capa-  , 
city  to  distinguish  between  good  and  evil.  A  boy  of  ten 
years  and  another  of  nine,  have  been  executed  for  killing 
their  companions,  it  being  considered  that  they  showed  a 
consciousness  of  guilt,  one  by  hiding  the  body  of  him  he 
had  killed,  and  the  other,  by  secreting  himself.  When  a 
person  is  compelled  by  threats  which  give  just  and  well- 
grounded  apprehension  of  death  or  bodily  harm,  he  is  in 
some  instances  deemed  innocent  of  a  crime.  A  wife  is 
considered  as  so  much  under  the  subjection  and  correction 
of  her  husband,  thai  her  acts  of  a  criminal  nature,  done 
in  the  company  of  her  husband,  are  supposed  to  have  been 
committed  by  his  command  and  authority,  and  she  is  ex- 
cused from  guilt.  But  in  case  of  crimes  against  the 
law  of  nature,  which  are  morally  wrong,  she  is  respon- 
sible for  her  criminal  conduct.  Intoxication,  although  it 
deprive  a  man  of  his  reason,  being  a  voluntary  and  a  crim- 
inal act,  forms  no  legal  excuse  for  the  commission  of  a 
crime,  and  a  man  7nust  be  punished  nhen  he  is  sober,  for 
his  deeds  when  in  a  state  of  inebriety. 

We   shall   begin  with  crimes  of  the   highest  nature  and 
follow  the  order  of  the  statute. 

1.   Of  crimes  against  the  lives  and  persons  of  individuals. 

Form  of  complaint   for  murder. 

To  A.  B.  of  Esq  justice  of  the  peace  for  the  coun- 
ty of  H  comes  C.  D.  of  in  said  county,  grand- 
juror  of  said  town  of  and  complains  that  a  transient 
person,  calling  himself  J.  S.  on  the  day  of  at 
in  the  night  season,  with  force  and  arms,  wilfully,  and  of 
malice  aforethought,  did  feloniously  kill  and  murder  E.  F. 


J  S3 

of  by  discharging  at  him  a  pistol,  the  ball  of  which 

passed  through  his  body,  near  the  heart,  of  which  wound 
he  immediately  expired,  against  the  peace,  contrary  to  the 
form  o.C  the  statute,  and  of  evil  example.  And  the  said 
C.  D.  prays  process  against  the  said  J.  S.  that  he  may  be 
arrested  and  examined.  Dated  &c. 

C.  D.  grand-juror. 

[In  case  of  man-slaughter,  the  words   of  malice  afore- 
thought, may  be  omitted.] 

Perjury  n-ith  intent  to  take  the  life  of  a  person. 
To  A.  B.  &c.  comes  C.  D.  of          grand-juror  of 
and  complains,  that  on  the         day  of         at  H         in  said 
county,  before   the  honourable  superiour  court,  then  and 
there  in  session,  then  and  there  being  on  trial  before  said 
court  O.  P.  of  on  an  indictment  charging  the  said  O. 

P.  of  having  wilfully  arid  maliciously  burned  the  dwelling- 
house  of  R.  S.  and  thereby  caused  the  death  of  the  said 
R.  S.  ;  and  during  the  trial  of  said  O.  P.  for  said  crime 
of  arson,  one  Y.  Z.  of  having  been  duly  sworn  to  tes- 
tify in  said  case,  by  Z.  H.,  clerk  of  said  court,  did  wickedly, 
wilfully,  corruptly,  and  falsely,  and  with  malice  afore- 
thought, and  with  intention  to  take  away  the  life  of  the 
said  O.  P.  then  on  trial  as  aforesaid,  and  to  cause  him  to 
be  convicted  of  said  crime  of  arson,  testify  and  swear 
[here  set  out  the  words]  which  said  wicked,  corrupt,  and 
false  testimony  of  said  Y.  Z.  was  material  to  the  determin- 
ation of  the  issue  then  on  trial,  and  intended  to  take  away 
the  life  of  the  said  O.  P.  and  cause  his  conviction  ;  and 
which  said  acts  and  doings  of  the  said  Y.  Z.  are  against  the 
peace,  contrary  to  the  form  of  the  statute,  and  of  evil  ex- 
ample. Dated  &c. 

Arson,  causing  the  death,  or  endangering  the  life  of  a  person. 
To  A.  B.  &c.  comes  C.  D.  of  grand-juror  of  the 

town  of  and  complains,  that  E.  F.  of  being  an  evil 
minded  person,  did  on  the  day  of  with  force  and 
arms,  wilfully,  maliciously  and  feloniously  set  fire  to  and 
burn  the  store  of  G.  H.  of  situated  in  said  thereby 

causing  the  death  of  J.  S.  then  in  said  store  asleep,  he  be- 
ing burnt  and  consumed  in  said  building,  against  the  peace, 
contrary  to  the  statute,  and  of  evil  example. 


154 

(Jotnpluint  for  Rape. 

To  A.  B.  6cc.  comes  C.  D.  &.c.  and  complains  that  or:  itn- 
day  of  at  E.  F.  of  with  force  and  arms,  did  make 
,m  assault  on  the  bodv  of  E.  M.  of  a  single  woman  of  the 
age  of  twenty  years,  then  and  there  in  the  peace  of  this 
State  being,  and  with  like  force  and  arms,  and  with  actual 
violence,  did  then  and  there  forcibly  and  feloniously,  and 
against  the  will  of  the  said  E.  M.  have  carnal  copulation 
with  the  said  E.  M.  and  did  her  ravish,  force  and  know, 
against  her  will,  and  without  her  consent,  against  the  peace, 
and  contrary  to  the  form  of  the  statute  in  such  case  pro- 
vided, and  of  evil  example. 

The  warrant  in  these  cases  will  be  in  common  form. 
The  record  of  judgment  will  recite  all  the  material  allega- 
tions contained  in  the  complaint,  and  then  say  :  And  the 
prisoner  being  required  to  answer  to  said  complaint,  pleads, 
and  says  that  he  is  not  guilty,  and  having  heard  the  testi- 
mony, as  well  in  behalf  of  the  prisoner  as  of  the  State,  I 
am  of  opinion  that  there  are  probable  grounds  to  support 
said  complaint,  whereupon  it  is  corx-idered,  that  the  said 
E.  F.  be  committed  to  the  keeper  of  the  gaol  in  and  for 
said  county  of  H  therein  safely  to  be  kept  until  he 

shall  be  delivered  and  discharged  according  to  law. 

Mittimus* 

To  the  sheriff  &c.  Greeting  : 

Whereas  E.  F.  of  on  the  day  of  was  brought 
before  me  by  virtue  of  a  warrant  issued  upon  tho  com- 
plaint of  C.  D.  grand-juror  of  the  town  of  complaining 
of  the  said  E.  F.  that  on  the  day  of  at  with 

force  and  arms  [recite  the  allegations  charging  the  crime]  ; 
to  which  said  complaint  the  said  E.  F.  plead  not  guilty, 
and  having  heard  the  evidence  and  inquired  into  facts  al- 
leged in  said  complaint,  I  was  of  opinion  that  there  were 
probable  grounds  to  support  said  complaint,  whereupon  it 
was  considered  that  the  said  E.  F.  be  committed,  (the  said 
crime  not  being  bailable,)  to  the  keeper  of  the  gaol  in 
and  for  the  county  of  H  therein  to  be  kept  until  deliv- 
ered by  due  course  of  law. 

These  are  therefore  to  command  you  to  take  an.l  con- 
vey the  said  E.  F.  to  said  gaol,  and  him  deliver  into  the  cus- 


tody  of   the  keeper  thereof,  and  lr;:\e  with  him  this  ua: 
rant  of  commitment  ;  and  said  keeper  is  hereby  command- 
ed to  receive   the  said   E.  F.  and  him  safely  keep  within 
-•iid  :;;iol  until  delivered  and  discharged  hy  due  course  of 
law.     Dated  &c. 

The  preceding  crimes  are  capital  offences,  and  punished 
by  death. 

Complaint  for  having  carnal  knowledge  of  a  female  under 
the  age  of  ten  years. 

and  complains  that  A.  B  of     on  the  -     day  of 

at  ,  with  force  and  arms,  did  commit  an  assault  on  the  body 
of  C.  D.  a  female  child  of  the  age  of  nine  years  and  six 
months,  and  with  like  force  did  then  and  there  feloniously 
copulate  with  said  child,  and  her  carnally  know  and  abuse, 
against  the  peace,  contrary  to  the  form  of  the  statute,  and 
of  evil  example.. 

Complaint  for  an  attempt  to  commit  a  rape. 
complains  that  A.  B.  of         on  the       day  of 


at  with  force  and  arms,  feloniously  an  assault  made  on 
the  body  of  C.  D.  of  ,  a  female  of  the  age  of  fifteen 

years,  with  the  intention  to  ravish,  carnally  know,  and  com- 
mit a  rape  on  the  body  of  the  said  C.  D.  against  the  peace, 
and  contrary  to  the  form  of  the  statute. 

Complaint  against  a  woman  for  concealing  her  pregnancy. 

complains  that  E.  F.  of          was  on  the          day 

of  at  ,  intentionally  and  feloniously  de- 

livered in  secret,  and  by  herself,  of  an  issue  of  her  body, 
being  a  male   child,   which  child  is  by  law  a  bastard,  and 
that  for  nine  months  previous  to  the  delivery  of  said  child, 
the  said  E.  F.  had  intentionally  and  feloniously  concealed    f 
her  said  pregnancy  :  all  of  which  is  against  the  peace  and    \ 
contrary  to  the  form  of  the  statute  in  such  case  provided. 

Complaint  for  administering  poison  to  a  woman  to  procure      . 
an  abortion.  J 

—  complain?  that  on  the         day  of        at         A.  B^i 
of         ,  with  force  and  arms,  did  wilfully,  maliciously  and 
feloniously   administer  a  certain  poisonous  medicine  and 
noxious  and  destructive  substance  called  to  C.  D.  of 

a  female  and  unmarried,  the  said  C.  D.  then  being 


pregnant  and  quick  with  child,  with  intention  thereby  to 
cause  the  miscarriage  of  the  said  C.  D.  of  the  said  child 
of  which  she  was  then  pregnant,  and  by  means  whereof 
the  said  C.  D.  did  miscarry  of  the  child  of  which  she  was 
then  pregnant,  against  the  peace  &c. 

When  poison  is  administered  to  any  person  to  cause 
their  death,  say  :  did  wilfully,  maliciously  and  feloniously 
and  with  malice  aforethought,  administer  and  cause  to  be 
administered  to  C.  D.  of  a  certain  deadly  poison  and 

noxious  and  destructive  substance,  called  with  an  in- 

tention him  the  said  C.  D.  thereby  to  kill,  cause  the  death 
of,  and  murder,  against  the  peace  &c. 

Complaint  for  an  assault  rcith  intention  to  kill  or  rob. 

- complains  that  on  the  day  of  at  , 

A.  B.  of  ,  being  an  evil  disposed  person,  with  force  and 
arms,  and  with  actual  violence,  and  with  the  intention  him 
to  kill  and  murder,  (or  with  intention  him  to  rob,)  an  as- 
sault made  on  the  body  of  C.  D.  of  then  and  there  in 
the  peace  of  this  State  being,  against  the  peace,  and  con- 
trary to  the  form  of  the  statute  in  such  case  provided. 

Complaint  for  the  concealment  of  the  death  of  a  bastard  child. 

complains  that  on  the         day  of         at         A.  B. 

of  ,  then  and  ever  since  a  single  woman,  was  secretly 
delivered  of  an  issue  of  her  body,  the  same  being  still- 
born and  without  life,  and  which  issue,  if  born  alive,  would 
have  been  a  bastard,  and  that  the  said  C.  D.  hath  intention- 
ally and  feloniously,  by  herself,  and  the  procurement  of 
others,  concealed  the  death  of  said  issue  of  her  body, 
against  the  peace  &.c. 

Complaint  for  kidnapping. 

complains  that   on  the  day  of         A.  B.  of 

with  force  and  arms,  did  deceitfully  and  feloniously 
kidnap,  and  forcibly  and  fraudulently  carry  off  and  decoy 
out  of  this  state,  C.  D.  of  a  free  person  of  colour,  and 
did  then  and  there  with  like  force  and  fraud,  arrest  and 
imprison  the  said  C  D.  and  him  convey  and  carry  off  out 
of  this  State,  he  the  said  A.  B.  then  and  there  well-know- 
ing the  said  C.  D.  to  be  free,  against  the  peace. 

complains  that   on  the  day  of  at 

A.  B.  of        with  force  and  arms,  deceitfully,  fraudulently 


,iud  feloniously,  did  forcibly  arrest  C.  D.  of  ,  a  free 
person  of  colour,  and  him  with  like  force  imprison  and 
confine  in  a  certain  vessel,  called  the  ,  lying  in  the  har- 
bour of  ,  with  the  intention  him  the  said  C.  D.  to  con- 
vey and  carry  out  of  this  State,  he  the  said  A.  B.  then  and 
there  well  knowing  that  the  said  C.  D.  was  free,  against  the 
peace  &c. 

[The  last  eight  offences  are  punishable  by  imprisonment 
during  life,  or  such  other  term  as  the  superior  court,  which 
has  recognizance  of  the  crimes  may  determine.  They  are 
consequently  bailable.  The  record  of  judgment  will  be 
the  same  until  the  finding  of  the  issue  :]  And  having  in- 
quired into  the  facts  and  allegations  contained  in  said  com- 
plaint, I  do  find  and  am  of  opinion  that  there  are  probable 
grounds  for  supporting  said  complaint,  whereupon  it  is 
considered  that  the  said  become  bound  with  sufficient 

surety,  in  a  recognizance  of  five  hundred  dollars,  to  the 
Treasurer  of  the  State,  that  the  said  appear  before  the 
honourable  superior  court  next  to  be  holden  at  H  ,  on 
the  Tuesday  of  A.  D.  for  said  county  of  H  , 
then  and  there  to  answer  to  said  complaint,  and  abide  the 
decision  of  said  court  thereon,  and  the  said  ,  and  G. 
H.  as  his  surety,  became  bound  accordingly. 

Recognizance. 
H         county,  ss.  H         ,  the          day  of          A.  D. 

You  C.  D.  of  as  principal,  and  G.  H.  of  as  surety, 
acknowledge  yourselves  jointly  and  several  bound  to  the 
Treasurer  of  the  State  of  Connecticut  in  a  recognizance 
in  the  sum  of  five  hundred  dollars,  that  the  said  C.  D.  shall 
appear  before  the  next  superior  court  to  be  holden  at  H 
on  the  Tuesday  of  A.  D.  in  and  for  said  county 
of  H  ,  then  and  there  to  answer  to  the  foregoing  com- 
plaint of  E.  F.  grand-juror,  charging  the  said  C  D.  with 
the  crime  of  and  abide  the  decision  of  said  court  there- 
on. Taken  and  acknowledged  in  H  ,  the  day  and  year 
above  written,  before  me. 

J.  P.  justice  of  the  peace. 

[If  the  prisoner  cannot  procure  bail,  he  must- be  com- 
mitted, in  which  case  the  conclusion  of  the  record  will  be 
as  follows  :] 

And  the  said  C.  D.  neglecting  and  refusing  to  become 
bound  with  surety  as  aforesaid,  he  was  ordered  to  be  com- 
14 


158 

initted  into  the  custody  of  the  keeper  of  the  gaol  lor  said 
county  of  H  ,  and  by  virtue  of  a  warrant  of  commit- 
ment by  me  issued,  was  committed  accordingly. 

Mitiimut, 

To  the  sheriff  &c.  Greeting  : 

Whereas  C.  D.  of  ,  on  the  day  of  ,  was  brought 
before  me  by  virtue  of  a  warrant  issued  on  the  complaint 
of  E.  F.  grand-juror  of  ,  for  that  on  the  day  of 
at  the  said  C.  D.  with  force  and  arms,  did  &c.  [here 
recite  the  allegations  in  the  complaint  charging  the  crime] 
and  to  said  complaint  the  said  C.  D.  plead  not  guilty,  and 
having  inquired  into  the  facts,  I  did  find  that  there  were 
probable  grounds  to  support  said  complaint,  and  thereup- 
on it  was  considered  that  the  said  C.  D.  become  bound 
with  sufficient  surety  to  the  Treasurer  of  this  State,  in  the 
sum  of  five  hundred  dollars,  that  the  said  C.  D.  appear  be- 
fore the  superior  court,  to  be  holden  at  H  on  the 
Tuesday  of  A.  D.  for  said  county,  then  and  there  to 
answer  to  said  complaint,  and  abide  the  decision  of  said 
court  thereon  ;  and  the  said  C.  D.  having  neglected  and 
refused  to  become  bound  as  aforesaid.  Wherefore,  by  au- 
thority of  the  State  of  Connecticut  you  are  hereby  com- 
manded to  take  and  convey  the  said  C.  D.  to  the  gaol  of 
said  county  of  H  ,  and  him  to  deliver  into  the  custody 
of  the  keeper  thereof,  and  to  leave  with  him  this  warrant 
of  commitment  ;  and  said  keeper  is  also  commanded  to  re- 
ceive and  safely  to  keep  the  said  C.  D.  within  said  prison, 
until  he  may  be  delivered  and  discharged  by  due  course  of 
law. 

OF    CRIMES    AGAINST    PUBLIC    PROPERTY'. 

Complaint  for  Burning  a  Magazine. 

complains  that  on  the         day  of         A.  D.       at 

H  ,  C.  D.  of  ,  with  force  and  arms,  did  wilfully, 
maliciously  and  feloniously  burn  and  destroy  a  magazine  of 
military  stores  then  and  there  being,  belonging  to  the  State  of 
Connecticut,  against  the  peace  and,  contrary  to  the  iorm  of 
the  statute  in  such  case  provided,  and  of  evil  example. 

Complaint  for  burning  public  buildings. 

complains  that  on  the        day  of        at         A.  B. 

of        with  force  and  arms,  did  wilfully,  maliciously  and 


159 

feloniously  set  fire  to,  and  burn  a  school  house,  situated  in 
said  ,  used  for  the  purposes  of  education,  and  belong, 

ing  to  the  school-district  in  the  society  of  ,  in  said  town 
of  .  and  said  house  was  wholly  consumed  and  destroy- 
ed, against  the  peace  &c. 

Complaint  for  forging  public  sureties. 

complains  that  on  the  day  of          at         in 

the  county  of  E.  F.  of  ,  with  force  and  arms,  wil- 
fully, fraudulently  and  feloniously,  did  falsely  make,  forge 
and  counterfeit  a  certain  writing  or  order,  purporting  to 
have  been  made  by  A.  B.,  C.  D  and  G.  H.  select-men  of 
the  said  town  of  ,  and  purporting  to  be  directed  to  and 
requesting  J.  S.,  treasurer  of  said  town  of  ,  to  pay  to 
the  said  E.  F.  the  sum  of  twenty  dollars,  and  which  said 
false,  forged  and  counterfeit  order  is  of  the  following  tenor 
viz.  [here  copy  the  order  literally]  as  by  the  same  order 
ready  in  court  to  be  produced  may  appear.  And  the  said 
grand-juror  avers  that  the  said  J.  S.  was  on  the  day  of  the 
date  of  said  order,  and  when  the  same  was  so  falsely  made, 
treasurer  of  said  town  of  ,  and  that  the  same  was  so  false- 
ly made,  forged  and  counterfeited  by  the  said  E.  F.  with 
the  intention  to  defraud  the  said  town  of  ,  being  a  cor- 
poration, against  the  peace  &c. 

CRIMES    AGAINST    PRIVATE    PROPERTY. 

Complaint  for  robbery. 

complains  that  on  the  day  of  at  one 

G.  H.  of  ,  being  an  evil  minded  person,  with  force 

and  arms,  did  wickedly,  wilfully  and  feloniously  make  an 
assault  on  the  body  of  A.  B  of  ,  he  then  and  there  be- 
ing, and  did  by  feloniously  putting  him  the  said  A.  B.  in 
fear  of  losing  his  life,  or  of  bodily  harm,  from  him  feloni- 
ously take  and  rob  three  bank  bills  or  notes,  one,  of  the 
denomination  and  value  of  five  dollars,  issued  by  the  pres- 
ident, directors  &.  co.  of  the  Phoenix  Bank  incorporated  by 
the  laws  of  this  state,  of  the  number  of  dated  ,  and 
signed  by  C.  S.  president,  and  countersigned  by  G.  B. 
cashier  of  said  bank  [describe  all  the  bills,  or  if  property 
is  taken,  and  not  money,  describe  the  property]  ;  and 
which  said  wrong  acts  and  doings  of  the  said  G.  H.  are 


160 

agaiast  the  peace,  contrary  to  the  form  of  the  statute  i»: 
such  case  provided,  and  of  evil  example. 

Complaint  for  burglary. 

complains  that  on  the         day  of        at         ,  in  the 

county  of  a  transient  person  of  the  name  of 

John  Brown,  otherwise  Peter  Foster,  then  at  said  . 

being,  in  the  night  season  of  said  day  about  the  hour  of 
o'clock    in    the   night,    with    force  and  arms,  feloniously 
and  burglariously,  did  break  and  enter  the  dwelling-house 
of  A.  B.  situated  in  said  ,  with  the  intention  to  steal  or 

commit  some  other  felony,  and  did  then  and  there  feloni- 
ously take,  steal  and  carry  away  [here  describe  the  prop- 
erty stolen]  of  the  proper  goods  and  chattels  of  the  said 
\.  B.  and  of  the  value  of  fifty  dollars,  against  the  peace,  &c. 

Complaint  for  breaking  a  dwelling-house  in  day  time  and 
putting  any  person  in  fear. 

complains  that  on  the  day  of  at  , 

in  said   county  of  ,  A.  B.  otherwise  called  C.  D.  a 

transient  person,  about  the  hour  of  twelve  o'clock  at  noon, 
with  force  and  arms,  felonionsly  did  break  and  enter  the 
dwelling-house  of  J.  S.  situated  in  said  town  of  ,  with 
the  intention  to  steal  therein,  and  E.  S.  the  wife  of  the 
said  J.  S.  then  and  there  being  alone  in  said  house,  he  the 
said  A.  B.  did  feloniously  and  with  the  like  intent,  put  her 
the  said  E.  S.  in  dread  and  fear  of  her  life,  or  bodily  in- 
jury, against  the  peace  &c. 

Complaint  for  arson. 

complains  that  on  the         day  of        at         ,  E.  F. 

of  ,  being  an  evil  disposed  person,  with  force  and  arms, 
did  wilfully,  maliciously  and  feloniously,  set  on  fire  and  burn 
a  certain  dwelling-house,  situated  in  said  ,  the  prop- 

erty of  ,  against  the  peace  and  contrary  to  the  statute 

n  such  case  provided,  and  of  evil  example. 

Complaint  for  burning  a  house,   store,  or  manufactory   by 
the  owner,  to  defraud  insurers. 

complains  that  on  the         day  of        A.  B.  of 

was  the  owner  of  a  certain  manufactory,  for  the  manufac- 
ture of  cotton  goods,  situated  in  ,  that  afterwards, 


161 

viz.  on  the  said  of  the  said  A.  B.  procured  and  ob- 
tained a  policy  of  insurance  of  the  ./Etna  Insurance  Com- 
pany, a  body  politic  and  corporate,  incorporated  by  the  le- 
gislature of  this  State,  underwritten  by  said  corporation, 
on  said  factory  and  the  machinery,  and  stock  therein  con- 
tained, to  the  amount  of  five  thousand  dollars,  and  which 
said  policy  was  signed  by  T.  K.  president  &c.  [here  de- 
scribe the  policy]  as  by  said  policy  of  insurance  ready 
to  be  produced  appears.  And  said  grand-juror  further 
complains,  that  afterwards,  on  the  day  of  at  said 

,  the  said  A.  B.  then  owner  of  said  factory,  with  force 
and  arms,  did  wilfully,  maliciously,  fraudulently  and  felon- 
iously set  on  fire  and  burn  said  factory,  the  machinery  and 
stock  therein  contained,  with  the  intention  to  defraud  said 
corporation  and  body  politic,  and  the  underwriters  of  said 
policy,  against  the  peace  &c. 

Complaint  for  Forgery. 

complains,  that  on  the         day  of        at         in  said 

county  of  ,  A.  B.  of  ,  with  force  and  arms,  did  wil- 
fully, fraudulently  and  feloniously,  f  Isely  make  forge, 
and  counterfeit,  a  certain  writing,  commonly  called  a  prom- 
issory note,  the  same  purporting  to  be  a  true  and  genuine 
note,  made  and  signed  by  J.  S.  wherein  he  promised  to  pay 
O.  P.  or  order,  the  sum  of  one  hundred  dollars  at  the  Phoe- 
nix bank,  an  incorporated  bank,  and  which  said  false  note 
is  in  the  words  and  figures  following  viz.  [here  copy  the 
note  or  instrument  forged]  as  by  the  same  note  ready  in 
court  to  be  produced  appears  :  and  which  said  forged  note 
was  so  by  the  said  A.  B.  falsely  made,  forged  and  counter- 
feited, with  the  intention  to  defraud  the  said  Phoenix  Bank, 
being  a  body  corporate,  incorporated  by  the  Inws  of  this 
State,  and  with  the  intention  to  defraud  the  said  J.  S., 
against  the  peace  and  contrary  to  the  form  of  the  statute  &c. 

Where  the  endorsement  is  forged. 

complains  that  on  the         day  of        A.  B.  of         , 

had  in  his  possession  a  certain  writing,  commonly  called  a 
promissory  note,  his  own  name  being  thereto  subscribed, 
therein  promising  to  pay  to  J.  S.  or  order,  at  the  Phrenix 
Bank,  an  incorporated  bank,  incorporated  by  an  act  of  the 
legislature  of  this  State,  the  sum  of  one  hundred  dollars  • 
14* 


that  afterwards,  on  the  said  day  of  at  said  .  the 
said  A.  B.  with  force  and  arms,  did  wilfully,  fraudulently 
and  feloniously,  falsely  make,  forge  and  counterfeit  a  cer- 
tain writing  or  endorsement  on  the  back  of  said  note,  pur- 
porting to  be  a  true  and  genuine  writing  and  endorsement 
of  the  said  J.  S.  and  purporting  that  the  said  J.  S.  thereby 
ordered  the 'contents  of  said  note  to  be  paid  to  the  said 
Phoenix  Bank  ;  and  which  said  note  is  in  the  words  and 
figures  following  viz.  [here  copy  the  note]  ;  and  which 
said  falsely  made,  forged,  and  counterfeit  writing  or  en- 
dorsement thereon  is  of  the  tenor  following,  viz.  "  J 

S ;"  and  which  said  false,  forged  and  counterfeit  en- 
dorsement was  so  as  aforesaid  falsely  made,  forged  and 
counterfeited  by  the  said  A.  B.  with  the  intention  to  de- 
fraud the  said  J.  S.  and  with  the  intention  to  defraud  the 
said  Phoenix  Bank,  against  the  peace  &c. 

Complaint  for  publishing  a  forged  instrument. 

complains  that  on  the     day  of    ,  at      ,  A.  B.  of     . 

had  in  his  possession  a  certain  falsely  made,  forged  and  coun- 
terfeit writing  or  note,  purporting  to  be  the  true  and  genuine 
note  of  J.  S.,  wherein  the  said  J.  S.  promised  to  pay  C.  D.  or 
order,  one  hundred  dollars  on  demand,  and  which  said  false 
notewas  of  the  tenor  following,  viz.  [here  copy  the  note]  as 
by  said  note  ready  to  be  produced  may  fully  appear.  And 
said  grand-juror  further  complains,  that  afterwards  on  the 
said  day  of  at  ,  the  said  A.  B.  with  force  and 

arms,  did  wilfully,  fraudulently  and  feloniously,  utter  and 
publish  as  true,  to  O.  P.  said  false,  forged  and  counterfeit 
note,  well  knowing  the  same  note  to  be  falsely  madf ,  forg- 
ed and  counterfeited,  with  the  intention  to  defraud  the  said 
J.  S.  and  with  intention  to  defraud  the  said  O.  P.,  against 
the  peace  &c. 

Complaint  for  Counterfeiting  Coin. 

complains  that  A.  B.  of          at         on  the         day 

of  ,  with  force  and  arms,  did  wilfully,  fraudulently  and 
feloniously  counterfeit  and  falsely  make,  a  certain  false  and 
counterfeit  silver  coin,  current  in  this  State,  called  a  Span- 
ish milled  dollar,  in  likeness  and  similitude  of  the  true  and 
genuine  silver  coin,  called  a  Spanish  milled  dollar,  of  cer- 
tain base  and  corrupt  metals,  with  intention  to  defraud  the 
s;ood  people  of  this  state,  against  the  peace  &c. 


163 

Complaint  Jor  pulling  off'  Counterfeit  Coin. 

complains  that  on  the         day  of  *      ,  A.  B.  of 

had  in  his  possession  a  certain  falsely  made  and  counter- 
feited coin,  in  likeness  and  similitude  of  a  genuine  gold 
coin,  called  a  half  eagle,  a  coin  current  in  this  state  ;  that 
afterwards  on  the  same  day  of  at  said  ,  with 

force  and  arms  he  did  fraudulently  and  feloniously  offer  to 
pass  and  give  in  payment,  and  did  utter,  put  off,  pass  and 
give  in  payment,  to  O.  P.  as  and  for  a  true  coin,  and  for  the 
consideration  of  five  dollars,  said  false  and  counterfeit  coin, 
he  the  said  A.  B.  well-knowing  said  falsely  made  and  coun- 
terfeit coin  was  spurious,  false  and  counterfeit,  with  the 
intention  to  defraud  the  said  O.  P.  and  other  citizens  of 
this  state,  against  the  peace  &c. 

Complaint  for  making  or  procuring  to  be  made  any 
plate  for  counterfeiting. 

complains  that  on  the         day  of        at         ,  A.  B. 

of  ,  with  force  and  arms,  wilfully,  feloniously  and  fraud- 
ulently, made,  caused,  and  procured  to  be  made  and  en- 
graved, a  certain  plate  for  falsely  making  and  counterfeit- 
in";  of  bills  or  notes,  for  the  payment  of  money  in  the 
name  of  the  president,  directors  and  company  of  the  Phoe- 
nix  bank,  an  incorporated  bank,  incorporated  by  an  act  of 
the  legislature  of  this  state,  wi'th  intent  to  defraud  said 
bank,  and  the  good  people  ofthis  state,  against  the  peace  &c. 

Complaint  for  possessing  -with  intent  to  pass  counterfeit  bills. 

complains  that  on  the        day  of         ,  at         ,  A.  B. 

otherwise  called  C.  D.  a  transient  person,  with  force  and 
arms,  wilfully,  fraudulently  and  feloniously  had  in  his  pos- 
session, sundry  false  and  counterfeit  bank  bills  or  notes, 
for  the  payment  of  money,  viz.  one  of  five  dollars,  pur- 
porting to  have  been  issued  by  the  president,  directors  and 
company  of  the  Phoenix  bank,  an  incorporated  bank  [de- 
scribe the  bills]  ;  that  the  said  A.  B.  had  in  his  possession 
said  false  and  counterfeit  notes,  well  knowing  the  same  to 
be  falsely  made  and  counterfeit,  and  with  the  intention  to 
utter  and  pass  the  same,  or  to  cause  and  procure  the  same 
to  be  uttered  and  passed,  and  with  the  intention  to  de- 
fraud the  several  banks  aforesaid,  and  the  good  people  of 
this  state,  against  the  peace  &c. 


164 

Complaint  for  selling  4'C.  counterfeit  bills  with  the  intent  to 
have  the  same  passed. 

complains  that  on  the  day  of  at  ,  A.  B. 

of  ,  with  force  and  arms,  did  wilfully,  fraudulently  and 
feloniously  sell,  exchange,  and  give  in  payment  to  C.  D.  of 
,  a  certain  false,  forged,  and  counterfeit  bill,  pur- 
portine  to  be  a  true  and  genuine  bill,  issued  by  the  pres- 
ident, directors  and  company  of  the  Phoenix  bank,  incor- 
porated by  an  act  of  the  legislature  of  this  state,  and  which 
said  bill  is  of  description  following,  viz.  [describe  the  bill]  ; 
he  the  said  A.  B.  well  knowing  the  same  to  be  falsely  made, 
forged  and  counterfeited,  with  the  intention  1o  have  the 
same  bill  uttered  and  passed,  and  with  the  intention  to  de- 
fraud the  said  Phoenix  bank  and  the  good  people  of  this 
state,  against  the  peace  &c. 

[In  the  preceding  cases  the  prisoner  must  be  bound  to 
the  superior  court.] 

Complaint  for  Horse  Stealing. 

complains,  that  on  the      day  of         at          A.  B.  a 

transient  person,  with  force  and  arms,  did  wickedly  and  fe- 
loniously take,  steal,  and  convey  away,  from  and  out  of,  the 
possession  of  J.  G.  of  said  a  certain  bay  horse,  the  pro- 
perty of  the  said  J.  G.  then  and  there  being,  and  of  the  va- 
lue of  dollars,  against  the  peace,  contrary  to  the  form 
of  the  statute,  and  of  evil  example. 

[A  qui-tam  information  lies  in  favour  of  the  owner  of  the 
horse,  who  is  entitled  to  treble  the  value  thereof.] 

For  stealing  from  a  Person. 

complains,  that  on  the      day  of        at         A.  B.  of 

with  force  and  arms,  did  wilfully  and  feloniously  take, 
steal,  and  carry  away,  from  the  person  of  C.  D.  of  said 
by  picking  his  pocket,  sundry  bank  bills  or  notes,  amount- 
ing in  all  to  the  sum  of  dollars,  and  which  said  bills 
were  of  the  following  description,  viz.  [here  describe  the 
bills,  mentioning  the  banks  by  which  they  were  issued]  ;  of 
the  proper  moneys  and  chattels  of  the  said  C.  D.  and  of  the 
value  of  fifty  dollars  ;• — [or,  did  take,  steal,  and  carry  away 
from  the  person  of  the  said  C.  D.  a  certain  gold  watch  and 
chain,  of  the  goods  of  the  said  C.  D.  then  and  there  in  his 
possession  being,  and  of  the  value  of  thirty  dollars,  against 
the  peace,]  &c. 


165 

[If  the  property  stolen  is  not  of  the  value  of  twenty  dol- 
lar?, it  is  only  simple  theft.  If  the  theft  was  committed  at 
afire,  say:]  did  feloniously  take,  steal,  and  carry  away 
from  the  person  of  C.  D.  of  at  at  and  during  an  as- 
semblage of  people  collected  for  the  purpose  of  extinguish- 
ing a  fire,  &c. 

Complaint  for  breaking  and  stealing  from  a  building  in  the 
day  time, 

complains,  that  on  the  day  of  at  R.  E.  a 

transient  person,  with  force  and  arms,  feloniously  did  un- 
lawfully break  and  enter,  about  the  hour  of  noon  of  said 
day,  into  the  shop,  or  store,  of  C.  D.  of  situated  in  said 
and  therein  did  feloniously  take,  steal,  and  carry  away 
four  yards  of  blue  broadcloth,  then  and  there  being,  of  the 
proper  goods  of  the  said  C.  D.  and  of  the  value  of  twenty 
dollars,  against  the  peace,  &c. 

[If  the  property  stolen  is  not  of  the  value  of  one  dollar, 
it  is  only  simple  theft.  In  the  last  five  cases  the  prisoner 
may  be  bound  either  to  the  next  superior  or  county  court.] 

Complaint  for  Simple  Theft. 

complains,  that  on  the      day  of        at         A.  B.  of 

with  force  and  arms,  one  silver  mounted  watch,  with  a 
gold  seal,  of  the  property  of  C.  D.  of  and  of  the  value 
of  thirty  dollars,  feloniously  did  then  and  there  take,  steal, 
and  carry  away  from  and  out  of  the  possession  of  the  said 
C.  D.  against  the  peace,  contrary  to  the  form  of  the  statute, 
and  of  evil  example,  &c. 

Warrant — same  as  in  other  criminal  cases. 

Record  of  Judgment. 
H         county     H         ,      day  of        A.  D. 

Be  it  remembered,  that  on  this          day  of         A.  B.  of 
was  brought  before  me  by  virtue  of  a  warrant  issued 
on  the  complaint  of  G.  H.  grand  juror  of  said  town  of  H 
for  that,  on  the      day  of        at         in  said  county  of  H 
with  force  and  arms  the  said   A.  B.  feloniously   did  take, 
steal,  and  carry  away  a  certain  silver  mounted  watch  and 
gold  seal,  of  the  property  of  C.  D.  of         and  of  the  value 
of  thirty  dollars,  against  the  peace,  &c.  and  being  required 
to  answer  to  said  complaint,  the  said  A.  B.  pleads  that  he 


166 

is  not  guilty  ;  and  having  inquired  into  the  facts,  and  fully 
heard  the  parties  with  their  witnesses,  I  do  find  that  the 
said  A.  B.  is  guilty  in  manner  and  form  alleged  in  said  com- 
plaint, and  do  further  find  that  said  watch  is  of  the  value  of 
ten  dollars  ;  whereupon  it  is  considered  that  the  said  A.  B. 
pay  a  fine  of  seven  dollars  to  the  treasury  of  the  town  of 
where  said  crime  was  committed,  and  that  he  be  further 
punished,  by  being  whipped  on  his  body  ten  stripes,  and 
that  he  pay  the  costs  of  this  prosecution,  taxed  at  dol- 

lars cents,  and  stand  committed  until  this  judgment  be 
performed. 

[If  the  goods  stolen  are  found  to  be  of  less  value  than 
four  dollars,  and  greater  than  one,  the  judgment  will  be  as 
follows  :] 

I  do  find  that  the  said  A.  B.  is  guilty  as  charged,  and  further 
find  that  the  said  goods  are  of  the  value  of  three  dollars, 
and  thereupon  it  is  considered  that  the  said  A.  B.  pay  a 
fine  to  the  treasury  of  of  five  dollar*  [not  to  exceed 

seven]  and  the  costs  of  this  prosecution,  taxed  at  ;  and 
the  said  A  B.  having  neglected  and  refused  to  pay  said  fine 
and  costs,  or  secure  the  payment  of  the  same,  a  reasonable 
time  having  been  allowed  him  so  to  do.  it  is  thereupon  fur- 
ther considered  that  the  said  A.  B.  be  punched  by 
whipping  seven  stripes  on  his  body,  and  that  he  stand  com- 
mitted until  the  same  is  performed,  and  the  costs  of  this 
prosecution  paid. 

[Where  the  value  of  the  jroods  is  found  to  exceed  thirty 
dollars,  the  person  is  to  be  bound  to  the  county  court  .is  in 
other  cases  ;  and  where  the  value  is  less  than  one  dollar, 
he  can  only  be  fined  and  subjected  to  pay  the  costs.] 

A  qui-tam  information  may  be  brought  for  theft,  for  which 
see  page  133,  in  which  case  damages  are  also  to  be  given  to 
the  owner  of  the  goods,  to  the  amount  of  treble  the  value 
thereof. 

Warrant  of  Execution. 
To  the  Sheriff  of,  &c.  Greeting. — 

Whereas,  A.  B.  of  was  on  the  day  of  convict- 
ed before  me,  of  having  stolen  a  silver  watch  and  gold  seal 
of  C.  D.  of  and  the  same  was  found  to  be  of  the  value  of 
ten  dollars  ;  and  thereupon  it  was  considered  that  the  said 
A.  B.  pay  a  fine  to  the  treasury  of  the  town  of  of  sev- 


167 

en  dollars,  aod  the  costs  of  prosecution,  taxed  ut  and 
that  he  be  further  punished,  by  whipping  seven  stripes  on 
his  body,  whereof  execution  remains  to  be  done.  These 
are  therefore  to  command  you  without  delay  to  convey  the 
said  A.  D.  to  some  suitable  place,  and  there  inflict  on  his 
body  seven  stripes  ;  and  that  of  the  moneys,  goods  and  chat- 
tels, of  the  said  A.  B.  to  be  found  within  your  precincts, 
you  cause  to  be  levied  the  aforesaid  fine  and  costs,  and  pay 
the  same  to  me,  to  be  disposed  of  according  to  law,  and  fif- 
ty cents  more  for  this  warrant,  and  also  to  satisfy  your  fees  ; 
and  for  want  of  goods  and  chattels  of  the  said  A.  B.  to  satis- 
fy said  several  sums,  you  are  to  levy  on  his  body,  and  him 
commit  into  the  custody  of  the  keeper  of  the  gaol  for  said 
county  of  who  is  hereby  commanded  to  receive  the 

said  A.  B.  within  said  gaol,  and  him  safely  keep  therein, 
until  he  is  delivered  and  discharged  by  due  course  of  law  ; 
and  you  are  to  leave  a  copy  of  this  warrant  with  said  keep- 
er.* Hereof  fail  not,  but  make  return  within  sixty  days 
next  coming. 

Dated^  &c.  J.  P.  Justice  of  the  Peace. 

[Where  the  goods  are  more  than  one  dollar,  and  less 
than  four,  the  warrant  will  be  the  same  as  the  preceding, 
until  you  state  the  conviction]  : — was  convicted  before  me 
of  having  stolen  a  watch,  of  the  proper  goods  of  C.  D.  and 
the  same  was  found  by  me  to  be  of  the  value  of  three  dol- 
lars, whereupon  it  was  considered  that  the  said  A.  B.  pay 
a  fine  to  the  treasury  of  of  five  dollars,  and  the  costs  of 
prosecution,  taxed  at  and  the  said  A.  B.  having  neglect- 
ed and  refused  to  pay  said  fine  and  costs,  or  secure  the  pay- 
ment of  the  same,  a  reasonable  time  having  been  allowed 
him  so  to  do,  it  was  thereupon  further  considered  that  he 
be  punished  by  whipping  ten  stripes  on  his  body,  and  that 
he  pay  the  aforesaid  costs  of  prosecution,  whereof  execu- 
tion remains  to  be  doue.  These  are  therefore,  by  author- 
ity of  the  state  of  Connecticut,  to  command  you  to  convey 
the  said  A.  B.  to  some  suitable  place,  and  there  inflict  up- 
on his  body  ten  stripes  ;  and  that  of  the  goods  and  chattels 
of  the  said  A.  B.  to  be  found  within  your  precincts,  you 
cause  to  be  levied  the  aforesaid  sum  of  the  costs  of  said 
prosecution,  with  fifty  cents  more  for  this  warrant,  and  al- 
so for  your  fees  ;  and  for  want  of  goods  and  chattels  of  the 


168 

said  A.  B.  to  satisfy  said  sums,  you  are  to  levy  on  his  bod)  . 
and  him  commit  into  the  custody  of  the  keeper  of  the  gaol 
for  ?aid  county  of  and  leave  with  him  a  copy  of  this 
warrant ;  and  said  keeper  is  hereby  commanded  to  receive 
the  said  A.  B.  and  him  safely  keep  within  said  gaol,  until 
he  be  delivered  and  discharged  by  due  course  of  law. — 
Hereof  fail  not,  but  of  this  warrant,  with  your  doings  there- 
on, make  return  within  sixty  days  next  coming. 

Dated,  &c.  J.  P.  Justice  of  the  Peace. 

[When  the  goods  stolen  are  of  less  value  than  one  dollar, 
the  warrant  will  command  the  officer  to  levy  the  fine  and 
costs,  and  for  want  oCgoods  to  satify  the  same,  to  take  and 
Commit  the  body  of  the  prisoner,  to  gaol,  as  in  the  preceding 


Quitam  Process  for  theft  and  Search- War  rant. 

To  A.  B.  of  Justice  of  the  Peace  for  the  county  of 
conies  C.  D.  of  and  complains  as  well  in  the 

name  of  the  state  of  Connecticut,  as  in  his  own  name,  that 
one  E.  F.  of  on  the  day  of  at  said  one  certain 
piece  of  woollen  cloth,  three  fourths  of  a  yard  wide,  con- 
taining ten  yards,  of  the  proper  goods  of  the  said  A.  B.  and 
of  the  value  of  dollars,  then  and  there  being,  with  force 
and  arms,  feloniously  did  take,  steal,  and  carry  away,  from, 
and  out  of  the  possession  of  the  said  complainant,  who  fur- 
ther complains  and  informs,  that  he  hath  good  grounds  to 
suspect,  and  doth  suspect,  that  the  said  E.  F.  hath  feloni- 
ously secreted  and  concealed  said  stolen  goods,  in  his 
dwelling  house,  situated  in  said  and  that  said  goods  are 

now  so  feloniously  concealed  and  secreted  by  the  said  E. 
F.  in  his  said  dwelling-house,  against  the  peace,  and  con- 
trary to  the  statute  in  such  case  provided,  and  to  the  dam- 
age of  the  complainant  the  sum  of  ten  dollars  ;  and  the 
complainant  prays  that  process  may  issue  to  search  for  said 
stolen  goods,  and  to  arrest  the  said  E.  F.  that  he  may  be 
examined  and  dealt  with  according  to  law. 

Dated,  &c.  A.  B. 

County  of  H         ss.     H         ,         day  of        A.  D. 

Personally  appeared  before  me,  A.  B.  who  hath  subscri- 
bed the  foregoing  complaint,  and  made  oath  to  the  truth  of 


ihc  saiue,  and  that  he  hath  just  grounds  to  suspect,  and  doth 
suspect,  that  said  goods  were  stolen  by  the  said  E.  F.  and 
that  they  are  secreted  and  concealed  by  him  in  his  said 
dwelling-house  as  mentioned  in  said  complaint. 

J.  P.  Justice  of  the  Peace. 

Warrant. 
To  the  Sheriff,  &c.  Greeting — 

Whereas  the  foregoing  complaint  hath  been  made  to  me, 
and  the  said  complainant  hath  made  oath  to  the  truth  of  the 
same  ;  these  are  therefore,  by  thf  authority  of  the  State  of 
Connecticut,  to  command  you  forthwith  to  proceed  with 
the  said  A.  B.,  taking  assistance,  if  necessary,  and  in  the 
day  time  enter  into  the  dwelling-house  of  the  said  E.  F.  de- 
scribed in  said  complaint,  and  diligently  make  search  there- 
in for  the  said  stolen  goods  mentioned  in  said  complaint, 
and  if  found,  to  seize  the  same,  and  forthwith  bring  the 
same  before  me  or  some  other  justice  of  the  peace  of  said 
county  ;  and  you  are  also  commanded  to  arrest  the  body  of 
the  said  E.  F.  if  he  can  be  found  within  your  precincts, 
and  him  forthwith  have  before  the  same  justice  of  the  peace, 
that  he  may  be  examined,  touching  the  matters  contained 
in  said  complaint,  and  be  dealt  with  according  to  law. 
1  Dated,  &c.  J.  P.  Justice  of  the  Peace. 

If  the  prisoner  is  found  guilty,  and  the  property  found 
to  be  of  the  value  of  four  dollars  or  more,  the  judgment 
must  be  that  he  be  fined  not  exceeding  seven  dollars,  and 
whipped  not  exceeding  ten  stripes,  and  also  that  he  pay 
treble  the  value  of  said  goods  to  the  said  A.  B.  the  party 
injured.  For  form  of  Record,  see  page  165. 

Complaint  for  receiving  and  concealing  stolen  goods. 

complains,  that  on  the        day   of        at         some 

person  to  the  said  grand-juror  unknown,  feloniously  took, 
stole,  and  carried  away  from  the  possession  of  C.  D.  of 
a  certain  timber  chain,  of  the  length  of        feet,  of  the  pro- 
per goods  of  the  said  C.  D.  and  of  the  value  of  three  dol- 
lars, and  that  afterwards,  on  the  same  day  of        at  said 
E,  F,  of  with  force  and  arms,  did  feloniously  receive 

the  said  goods,  well  knowing  the  same  to  have  been  stolen, 
and  did  then  and  there  fraudulently  and  feloniously  conceal 
15 


170 

nui  secrete  the  same  goods,  against  the  peace,  and  contra 
ry  to  the  form  of  the  statute,  fcc. 

OF  CRIMES  AGAINST  PUBLIC  JUSTICE. 

Complaint  for  Perjury. 

complains  that  on  the         day  of          at          in  the 

county  of  H  before  the  superior  court  then  in  session 

at  H  for  said  county,  a  certain  cause  then  being  on  trial 
before  said  court,  wherein  A.  B.  was  plaintiff,  and  C.  D. 
defendant,  O.  P.  of  was  then  and  there  before  said  court 
duly  sworn  to  testify  in  said  cause,  and  had  administered 
to  him  by  f.  C.  the  clerk  of  said  court,  and  duly  authoriz- 
ed to  swear  witnesses,  to  testify  before  said  court,  the  oath 
provided  by  law  for  witnesses  ;  and  that  afterwards,  on  said 
day  of  and  during  the  trial  of  said  cause,  the  said 
O.  P.  did  wickedly,  corruptly  and  feloniously,  falsely  testi- 
fy and  swear,  that  [here  set  out  the  words]  he,  the  said  O. 
P.  then  well  knowing  that  said  testimony  was  untrue  and 
false,  and  the  same  was  material  to  the  issue  joined  and  on 
trial  between  said  parties  in  said  cause,  against  the  peace, 
contrary  to  the  form  of  the  statute  in  such  case  provided, 
and  of  evil  example. 

Complaint  for  Subornation  of  Perjury. 

complains  that  on  the         day  of         at          A.  B. 

did  wickedly,  corruptly,  and  feloniously  suborn  and  procure 
E.  F.  of  to  appear  before  the  superior  court,  on  the 
day  of  at  the  said  court  then  and  there  being  in  ses- 
sion for  said  county  of  H  and  then  and  there  corruptly 
and  falsely  to  testify  in  a  cause  then  on  trial  before  said 
court,  wherein  the  said  A.  B.  was  plaintiff,  and  the  said  C. 
D.  defendant,  that  [here  recite  the  false  testimony]  ;  and 
the  said  E.  F.  was  then  and  there  by  T.  C.  clerk  of  said 
court,  duly  sworn  to  testify  in  said  cause,  and  did,  during 
the  trial  thereof,  testify  the  aforesaid  false  and  corrupt 
words  and  facts,  and  which  false  testimony  so  falsely  and 
wickedly  procured  by  the  said  A,  B.  to  be  testified,  he  well 
knew  to  be  false  and  corrupt,  and  the  same  was  material  to 
the  issue  then  on  trial  between  said  parties  ;  which  wrong 
and  corrupt  acts  and  doings  of  the  said  A.  B.  are  again=! 
the  peace,  &c. 


171 

Complaint  for  Bribery. 

complains,  that  on  the  day  of  at  A.  B.  oi 

did  wickedly,  corruptly  and  feloniously  offer  to  J.  P. 
then  justice  of  the  peace  for  the  county  of  H  and  con- 

cerned in  the  administration  of  justice,  the  sum  of  dol- 
lars in  money,  with  the  intention  to  bribe  the  said  J.  P.  and 
influence  his  behaviour  in  his  said  office,  in  relation  to  a 
cause  then  pending  before  said  Justice,  wherein  the  said  A. 
B.  was  plaintiff,  and  C.  D.  of  defendant;  and  which 

>aid  wrong  and  corrupt  acts  and  doings  of  the  said  A.  B.  are 
against  the  peace,  &c. 

[The  criminal  must  be  bound  to  the  superior  court  for 
bribery.] 

Complaint  for  Embezzling  any  Record. 

complains,  that  on  the      day  of        at         C.  D.  oi 

with  force  and  arms  did  wilfully,  corruptly  and  feloni- 
ously embezzle,  eloine,  and  take  away  from  the  office  of  J. 
P.  justice  of  the  peace  for  the  county  of  H  and  author- 
ized to  hold  courts  of  record,  a  certain  writ  and  process 
returned  before  said  justice,  wherein  A.  B.  was  plaintiff 
and  the  said  C.  D.  defendant,  and  which  was  issued  by  [here 
describe  the  same]  and  which  said  writ  and  process  was  a 
part  of  the  riles,  proceedings  and  records  of  said  Justice  in 
said  cause,  and  the  same  writ  and  process  were  so  embez- 
zled, eloined,  and  taken  away  from  and  out  of  the  office  of 
said  Justice,  by  the  said  C.  D.  with  the  intention  to  defeat 
said  suit  and  cause,  and  to  prejudice  the  rights  of  the  said 
A.  B.,  against  the  peace,  and  contrary  to  the  form  of  the 
statute,  &c. 

Complaint  for  Resistance  to  Officers. 

complains,  that  on  the          day  of         at          A.  B. 

of  with  force  and  arms  did  make  an  assault  on  M.  S. 
then  constable  of  the  said  town  of  while  the  said  M.  S. 
was  in  the  execution  of  his  said  office,  and  attempting  to  ar- 
rest O.  P.  of  said  by  virtue  of  a  writ  of  attachment  in 
favour  of  Q,  R.  against  the  said  O.  P.  issued  in  due  form  of 
law  by  J.  P.  justice  of  the  peace,  and  the  said  A.  B.  did 
then  and  there,  whilst  the  said  M.  S.  was  attempting  to  ar- 
rest the  said  O.  P.  in  obedience  to  the  command  in  said 
writ,  with  like  force  and  actual  violence,  abuse  and  resist 


the  said  M.  S.  in  the  execution  of  his  said  office,  against  the 
peace,  and  contrary  to  the  form  of  the  statute,  &c. 

[For  resisting  an  officer,  the  offender  must  be  bound  to 
the  county  court,  and  punished  by  fine  and  imprisonment.] 

OF  CRIMES  AGAINST  THE  PUBLIC  PEACE. 

Complaint  for  a  Riot. 

complains,  that  on  the         day  of  at  A. 

B.,  C.  D.  and  E.  F.  all  of  and  several  other  persons  to 

said  grand  juror  unknown,  with  force  and  arms,  riotously 
and  tumultuously  assembled  together  with  an  intention  to  do 
an  unlawful  act,  against  the  peace,  or  to  the  manifest  ter- 
ror of  the  people,  and  with  force  and  violence,  and  against 
the  peace,  to  pull  down  and  demolish  the  dwelling-house 
of  O.  P.  situated  in  said  ;  and  being  so  riotously  and 

unlawfully  assembled,  J.  P.  justice  of  the  peace  for  said 
county,  obtaining  knowledge  thereof,  resorted  to  the  place 
where  the  said  A.  B.,  C.  D.&c.  were  so  unlawfully  assem- 
bled, and  then  and  there,  after  commanding  silence,  in  their 
hearing,  made  proclamation,  with  an  audible  voice,  as  fol- 
lows, viz.  "  In  the  name  and  by  authority  of  the  State  of 
Connecticut,  I  charge  and  command  all  persons  assembled, 
immediately  to  disperse  themselves,  and  peaceably  to  depart 
to  their  habitations,  or  to  their  lawful  business,  upon  the 
pains  and  penalties  of  the  law  ;"  that  the  said  A.  B.,  C.  D. 
and  E.  F.  and  divers  other  persons  to  said  grand  juror  un- 
known, did  not  disperse  themselves  after  said  proclamation. 
but  continued  so  unlawfully  and  riotously  assembled  togeth- 
er, to  the  great  terror  of  the  good  people  of  this  state,  against 
the  peace,  and  contrary  to  the  form  ol  the  statute,  &c. 

Another. 

complains,  that  on  the         day  of         A.  B.,  C.  D. 

and  E.  F.  and  divers  other  persons,  to  the  said  gnmd  juror 
unknown,  with  force  and  arms,  and  riotously  and  tumultu- 
ously assembled  at  in  said  county,  to  do  an  unlawful 
,  act,  and  with  force  and  violence,  and  against  the  peace,  to 
pull  down,  demolish,  and  destroy  the  dwelling-house  of 
situated  in  said  and  being  so  riotously,  tumultuous- 
ly, and  unlawfully  assembled  togetfef.r,  with  force  and 
arms,  and  with  actual  violence,  and  to  the  manifest  terror 


173 

ofsundry  of  the  good  people  ofthis  state,  did  then  and  there 
pull  do\vn,  demolish  and  destroy  the  said  dwelling-house  of 
the  said  against  the  peace,  and  contrary  to  the  form  of 

the  statute  in  such  case  provided,  and  of  evil  example. 

[For  this  crime  the  offenders  must  be  bound,  either  to 
the  next  superior  or  county  court,  for  trial.  The  record 
of  judgment,  recognizance,  and  mittimus,  if  necessary,  the 
same  as  in  other  cases.] 

Complaint  for  breaking  Windows,  fyc.  in  the  night  season. 

romplains,  that  on  the       day  of         at         about 

the  hour  of  twelve  o'clock  at  night,  A.  B.  of  with  force 
and  arms,  did  wilfully  and  maliciously  break  a  window,  by 
forcibly  throwing  a  large  stone  against  the  same,  in  the 
dwelling-house  of  C.  D.  of  said  ,  the  family  of  the  said  C. 
D.  then  and  there  being,  and  residing  in  said  dwelling-house, 
against  the  peace  and  contrary  to  statute,  &.c. 

[For  this  crime  the  justice  may  give  judgment,  and  fine 
the  offender  seven  dollars,  or  bind  him  to  the  county  court, 
where  he  may  be  fined,  not  exceeding  one  hundred  dollars, 
and  imprisoned  in  the  county  gaol  not  exceedingsix  months.] 

Complaint  for  Breach  of  the  Peace. 
To  A.  B.  Esq.  of  justice  of  the  peace  for  the  coun- 

ty of         cornes  C.  D.  of        grand  juror  of  the  town  of 
and  complains,  that  on  the         day  of          at  E.  F,   of 

said  with  force  and  arms,  did  make  an  assault  on  the 

body  of  G.  H.  of  said  and  with  great  force  and  violence 
did  him  then  and  there  strike  and  beat  many  severe  blows, 
whereby  the  said  C.  D.  was  greatly  injured,  against  the 
peace,  and  contrary  to  the  form  of  the  statute  in  such-case 
provided,  and  of  evil  example.  And  the  said  grand  juror 
prays  process  against  the  said  E.  F.  that  he  may  be  arrest- 
ed and  examined  touching  this  complaint,  and  be  dealt  with 
according  to  law.  C.  D.  Grand-Juror. 

Warrant,  in  common  form. 

Record  of  Judgment. 
H         county,  ss.  H         ,        day  of        A.  D. 

Be  it  remembered,  that  on  this         day  of        A.  D. 
E.  F.  of        was  brought  before  me,  by  virtue  of  a  warrant 

15* 


174 

issued  upon  the  complaint  of  C.  D.  grand-juror  of  for 
that  on  the  day  of  at  the  said  E.  F.  with  force 
and  arms  did  an  assault  make  on  the  body  of  G.  H.  and  with 
like  force  did  then  and  there  him  strike  and  beat  many  se- 
vere blows,  whereby  he  was  greatly  injured,  against  the 
peace,  and  contrary  to  statute  :  and  being  required  to  an 
swer  to  said  complaint,  the  said  E.  F.  pleads  and  says  he  is 
not  guilty,  and  puts  himself  on  thecourtfor  trial  ;  and  hav- 
ing heard  the  evidence  introduced  by  said  grand-ju- 
ror in  support  of  said  complaint,  and  that  in  behalf  of  the 
said  E.  F.  I  do  find  that  the  said  E.  F.  is  guilty  as  charged 
against  him  in  said  complaint,  and  thereupon  it  is  consider- 
ed that  he  pay  a  fine  to  the  treasury  of  the  town  of  of 
seven  dollars,  and  also  that  he  be  imprisoned  in  the  common 
gaol  of  said  county  of  H  for  the  period  of  one  month 
from  the  date  hereof,  and  pay  the  costs  of  this  prosecution, 
taxed  at  dollars  and.  cents,  and  stand  committed  un- 
til judgment  be  performed. 

Warrant  of  Execution. 
To  the  Sheriff,  fee.     Greeting. — 

Whei'ca?E.  F.  of  \vas,  on  the  day  of  before 
me  convicted  of  having  on  the  day  of  at  with  force 
and  arms  made  an  assault  on  the  body  ofG.  H.  of  and  of 
having  then  and  there,  with  like  force,  him,  the  said  G.  H., 
beaten  and  stricken  many  severe  blows,  whereby  he  was 
greatly  injured,  against  the  peace  and  contrary  to  statute  ; 
whereupon  it  was  considered  by  me  that  the  said  E.  F.  pay 
a  fine  of  seven  dollars  to  the  treasury  of  and  also  that 

he  be  imprisoned  in  the  common  gaol  of  said  county  for  one 
month  from  the  day  of  the  date  of  said  judgment,  and 
that  he  pay  the  costs  of  said  prosecution,  taxed  at  : 

whereof  execution  remains  to  be  done.  These  are  there- 
fore, by  the  authority  of  the  State  of  Connecticut,  to  com- 
mand you  to  convey  the  said  E.  F.  to  the  gaol  of  said  county 
of  H  and  him  deliver  to  the  keeper  thereof,  and  to  leave 
with  him  a  copy  of  this  warrant  ;  and  said  keeper  is  also 
hereby  commanded  to  receive  the  said  E.  F.  within  said 
gaol,  and  him  confine  and  imprison  within  the  same,  during 
the  period  of  one  month  from  the  aforesaid  date  of  said  judg- 
ment, when  he  is  to  be  discharged  on  his  paying  said  fine 
and  costs  ;  but  if  he  neglects  or  refuses  so  to  do,  he  is  to 


I 

175 

be  safely  kept  in  said  gaol  until  he  pay  the  same,  and  the 
legal  costs  and  charges,  or  until  he  is  delivered  and  dis- 
charged by  due  course  of  law.  Dated,  &.c. 

[The  justice  may  impose  a  fine  only,  when  on  the  pris- 
oner's failing  to  pay  the  same,  and  cost?,  a  mittimus  must  be 
granted  in  common  form.  If  the  offence  be  of  an  aggrava- 
ted nature,  it  is  the  duty  of  the  justice  to  require  bonds  for 
his  appearance  to  the  next  county  court,  and  take  a  recog- 
nizance in  common  form,  or  if  he  fails  to  procure  bonds,  to 
issue  a  mittimus  and  commit  him  to  gaol,  as  in  other  cases. 
Or  he  may  be  ordered  to  procure  bonds  for  his'  appearance 
to  the  next  county  court,  and  in  the  mean  time  to  keep  the 
peace  and  be  of  good  behaviour.  In  which  case  the  judg- 
ment will  be  as  follows  :] — 

— I  do  find  that  the  said  E.  F.  is  guilty,  &c.  whereupon  it 
is  considered  that  he  become  bound  in  a  recognizance,  with 
sufficient  surety,  in  the  sum  of  dollars,  to  the  treasurer  of 
the  county  of  conditioned  that  he  appear  before  the 

county  court  next  to  be  holden  at  H      for  the  county  of  H 
then  and  there  to  answer  to  the   foregoing  complaint,   and 
abide  the  decision  of  said  court  thereon,  and   that  in   the 
mean  time  he  keep  the  peace  and  be  of  good  behaviour. 

Recognizance. 

You,  E.  F.  as  principal,  John  Doe  as  surety,  jointly  and 
severally  acknowledge  yourselves  bound  in  a  recognizance 
of  dollars  to  the  treasurer  of  the  county  of  H  condi- 
tioned that  the  said  E.  F.  appear  before  the  county  court 
next  tobe  holden  at  H  for  the  county  ol  H  then  and 
there  to  answer  to  the  foregoing  complaint,  and  abide  the 
decision  of  said  court  thereon,  and  that  in  the  mean  time  he 
keep  the  peace  and  be  of  good  behaviour. 

1'aken  and  acknowledged  before  me  this         day  of 
\.  D.         .  J.  P.  Justice  of  the  Peace. 

[In  a  qui-tam  information  for  breach  of  the  peace,  for 
which  see  page  ,  the  court  mustgive  damages  to  the  par- 
ty injured,  besides  imposing  a  fine,  and  sentencing  the  of- 
fender to  be  imprisoned,  if  he  thinks  the  case  requires  it. 
And  the  prisoner  cannot  be  discharged  without  paying  the 
damages,  as  well  as  the  fine  and  costs,  and  must  be  commit' 
ted  on  his  failure  so  to  do.] 


17G 

Complaint  by  private  individuals  for  surety  of  the  peace  and 

good  behaviour. 

To  J.  P.  of  justice  of  the  peace  for  the  county  of 
comes  A.  B.  of  and  complains  in  the  name  and  in  behalf 
of  the  state  of  Connecticut,  that  on  the  day  of  at 
in  said  county,  C.  D.  of  with  force  and  arms  did  threat- 
en, that  he  would,  before  long,  beat,  wound,  or  kill  him, 
the  complainant,  or  do  him  some  great  bodily  harm  ;  and 
the  said  A.  B.  further  complains,  that  he  has  just  cause  to 
fear,  and  that  he  doth  fear,  that  the  said  C.  D.  will  beat, 
kill,  or  wound  the  complainant,  or  do  him  some  great  bodi- 
ly harm,  or  procure  others  to  do  the  same,  and  that  he  is 
under  fear  of  death,  or  bodily  injury  from  the  said  C.  D, 
whereupon  he  requires  surety  of  the  peace  and  good  behav- 
iour against  the  said  C,  D.  and  prays  that  process  may  issue 
that  he  may  be  arrested  and  examined  touching  this  com- 
plaint, and  be  dealt  with  according  to  law.  A.  B. 

Oath. 
H          county  ss.    H          ,          day  of         A.  D. 

Personally\appeared  before  me,  A.  B.  who  hath  present- 
ed and  subscribed  the  foregoing  complaint,  and  made  oath 
to  the  truth  of  the  same. 

J.  P.  Justice  of  the  Peace^ 

/  [The  warrant  to  be  in  the  same  form  as  in  other  crimin- 
al prosecutions,  to  arrest  the  accused  forthwith.  If  the 
>  prisoner  is  found  guilty,  the  judgment  will  be] — that  he  be- 
come  bound  in  a  recognizance  of  dollars,  with  surety, 
to  the  treasurer  of  the  county,  conditioned  that  he  appear 
before  the  next  county  court,  then  and  there  to  answer  to 
said  complaint,  and  abide  and  submit  to  the  order  and  deci- 
sion of  said  court  thereon  ;  and  that  in  the  mean  time  he 
keep  the  peace  and  be  of  good  behaviour  to  all  the  citizens 
of  this  State,  and  especially  towards  the  said  A.  B.  and  that 
he  stand  committed  until  sentence  be  complied  with. 

The  recognizance  will  be  taken  to  the  treasurer  of  the 
county,  and  be  the  same  as  the  preceding,  only  adding  the 
words  after  good  behaviour,  "  especially  to  A.  B.  the  com- 
plainant." If  the  delinquent  fails  to  produce  bonds,  he 
must  be  committed. 


177 

Complaint  by  a  Wife  against  her  Husband. 
To  J.  P.  justice  of  the  peace,  &.c.  comes  Mary  Smith, 
wife  of  John  Smith,  hoth  of  and  complains,  in  the  name 
and  behalf  of  the  state  of  Connecticut,  that,  &c.  [  The  pro- 
cess in  all  respects  the  same  as  the  preceding,  the  only  dif- 
ference is  that  the  fact  appear  in  the  complaint,  and  the 
judgment  that  the  complainant  is  the  wife  of  the  delinquent. 
She  must  sign  the  complaint  and  make  oath  to  the  *ame,&c.] 

Complaint  for  Secret  Assault. 

To  J.  P.  of  H         ,  justice  of  the  peace  for  the  county 
of  H         comes  A.  B.  of         ,  in  said  county,  and  complains 
as  vvell  in  the  name  and  behalf  of  the  state  of  Connecticut, 
as  in  his  own  name  and  behalf,  that  on  the         day  of 
at  ,  about  the  hour  of  eleven  o'clock  at  night  of  said 

day,  C.  D.  of  ,  with  force  and  arms,  assaulted  the  said 
A.  B.  and  then  and  there  with  like  force  and  like  secrecy, 
with  fists,  clubs  and  stones,  and  other  dangerous  weapons, 
did  beat,  bruise  and  wound  him  the  said  \.  B.  whereby  he 
was  greatly  injured  in  his  body  and  limbs,  and  many  other 
injuries  and  enormities,  the  said  C.  D.  then  and  there  did 
and  committed,  secretly  and  forcibly,  against  the  peace  and 
contrary  to  the  form  of  the  statute  in  such  case  provided, 
and  to  the  damage  of  the  complainant  the  sum  of  one  hun- 
dred dollars  ;  whereupon  the  said  A.  B.  prays  process 
against  the  said  C.  D.  that  he  m-iy  be  arrested  and  exam- 
ined touching  this  complaint,  and  be  dealt  with  as  to  law 
and  justice  appeflaineth. 

Dated  &c.  A.  B. 

Oath. 

H  county,  ss.  H  day  of  A.  D.  appeared  be- 
fore me  A.  B.  who  hath  made  and  subscribed  the  foregoing 
complaint,  and  made  solemn  oath  to  the  truth  of  the  same. 

J.  P.  justice  of  the  peace. 
Warrant. 

To  the  sheriff  &c.  Whereas  A.  B.  of  ,  hath  pre- 
sented to  me  the  aforesaid  complaint,  and  made  oath  to  the 
truth  of  the  same  ;  and  likewise  m-ide  application  to  me 
and  exhibited  the  wounds  and  bodily  injuries  he  had  re- 
ceived by  the  secret  assault  mentioned  in  said  complaint  , 
WherofiM'e.  bv  minority  of  the  state  of  Connecticut  you 
are  hereby  commanded  without  delay,  to  arrest  the  body 


178 

of  C.  D.  of  ,  mentioned  in  said  complaint,  and  forth- 
with bring  him  before  me  [he  must  be  brought  before  the 
same  justice  to  whom  complaint  is  made,  and  his  wounds 
shewn]  at  my  office,  in  ,  in  said  county,  that  he  may 

be  examined  touching  the  facts  alleged  in  the  aforesaid 
complaint,  and  be  dealt  with  therein,  as  to  law  and  justice 
may  be  found  to  appertain.  Dated  &,c. 

J.  P.  justice  of  the  peace. 

[In  prosecutions  on  this  statute  the  complainant  is  ad- 
mitted as  a  witness,  and  upon  his  testimony  and  the  exhi- 
bition of  his  wounds  and  injuries,  it  is  the  duty  of  the  jus- 
tice to  bind  over  to  the  county  court,  unless  the  tes- 
timony of  the  complainant  should  be  contradicted  by  other 
witnesses.  From  the  terms  of  the  statute  it  would  seem 
that  the  accused  was  not  to  be  admitted  to  testify  before 
the  court  of  inquiry,  yet  as  he  is  expressly  admitted  to  tes- 
tify before  the  county  court,  it  is  difficult  to  conceive  why 
he  should  not  be  admitted  as  a  witness  before  the  justice 
on  the  inquiry.] 

The  record  of  judgment  will  be  the  same  as  in  other 
cases  of  binding  over  to  the  county  court,  except  that  it  is 
proper  to  state  that  the  complainant  was  examined  under 
oath.  The  recognizance^  must  be  taken  to  the  adverse  party. 

Recognizance. 
H         county,  ss.  H         day  of        A.  D. 

You  C.  D.  of  ,  as  principal,  and  O.  P.  of  ,  as 

surety,  jointly  and  severally  acknowledge  yourselves  bound 
in  a  recognizance  of  dollars  to  A.  B,  of  ,  that  the 
said  C.  D.  appear  before  the  county  court  next  to  be  hold- 
en  at  ,  in  and  for  the  county  of  H  ,  then  and  there 
to  answer  unto  the  foregoing  complaint  of  the  said  A.  B. 
and  submit  to  the  decision  of  said  court  thereon.  Taken 
and  acknowledged  before  me  the  day  and  year  above  writ- 
ten. J.  P.  justice  of  the  peace. 

If  the  delinquent  neglects  or  refuses  to  recognize  with 
surety,  he  must  be  committed  to  gaol,  and  a  mittimus  issued 
in  common  form. 

OF    CRIMES    AGAINST    CHASTITY. 

Complaint  for  Adultery. 

complains  that  on  the         d;:y  of        A.  B.  of 

a  single  man,  at         .  in  «aid  county,  with  force  and  arms, 


179 

did  commit  the  crime  of  adultery  with  E.  M.  of'  ,  a 
married  woman,  and  the  lawful  wife  of  S.  M.  and  did  then 
and  there,  her  the  said  E.  M.  carnally  know,  against  the 
peace,  contrary  to  the  form  of  the  statute,  and  of  evil  ex- 
ample. 

Complaint  for  Bigamy, 

complains  that  on  the      day  of     A.  B.  of       ,  then 

being  a  married  man,  and  having  a  lawful  wife  named  C.  B. 
to  whom  he  was  married  on  or  about  the  day  of  living, 
with  force  and  arms,  did  feloniously  and  deceitfqlly,  marry 
N.  S.  of  ,  a  single  woman,  and  hath  ever  since  continu- 
ed to  cohabit  and  live  with  the  said  N.  S.  as  his  wife,  against 
the  peace,  contrary  to  the  form  of  the  statute,  and  of  evil 
example. 

Complaint  for  Fornication. 

complains  that  on  the  day  of  at  , 

A.  B.  of  ,  with  force  and  arms,  did  commit  the  crime 

of  fornication  with  L.  M.  of  ,  a  single  woman,  and  did 
then  and  there,  her  the  said  L.  M  copulate  with,  and  car- 
nally know,  against  the  peace,  contrary  to  the  form  of  the 
statute,  and  of  evil  example. 

OF    CRIMES    AGAINST    MORALITY    AND    DECENCY. 

Complaint  for  Profane  Swearing, 

complains  that  on  the        day  of         ,  at         ,  A.  B. 

of  ,  did  swear  rashly,  vainly  and  profanely  ;  and  did 
then  and  there  utter  and  repeat  in  the  hearing  of  sundry 
good  people  of  this  state,  rashly  and  vainly,  the  following 
profane  oaths  and  words  [here  recite  the  words  used]  ;  or 
did  then  and  there  sinfully,  wickedly  and  profanely  curse 

C.  D.  of  ,  and  say  of  and  concerning  him  the  said  C. 

D.  the  following  wicked  and  profane  words,  yiz.  [here  state 
the  words],  against  the  peace,  contrary  to  the  statute  in 
such  case  provided,  and  of  evil  example. 

Complaint  for  distributing  Obscene  Books. 

complains  that  Q,  P.  of        ,  on  the       day  of 

at  ,  in  said  county  of  with  force  and  arms,  did  fel- 
oniously sell  and  distribute  to  A.  B.  and  C.  D.  both  of  said 
and  sundry  other  good  people  of  this  state,  a  certain 
vicious  and  obscene  book,  or  pamphlet,  containing  obscene 
language,  prints  and  descriptions,  called  ,  and  did 


180 

then  and  there  receive  of  the  said  A.  B.  and  C.  D.  and 
sundry  other  persons,  sundry  sums  of  money  for  the  sale 
of  said  obscene  book  or  pamphlet,  against  the  peace  &,c. 

[For  this  offence  the  delinquent  must  be  bound  to  ap- 
pear before  the  county  court  for  trial.] 

Complaint  for  Drunkenness. 

complains  that  on  the  day  of  at  ,  Q,  R. 

by  drinking  excessively  of  spiritous  liquors,  became  and 
was  intoxicated  and  drunk,  whereby  he  was  disabled  and 
bereaved  in  the  use  and  exercise  of  his  reason  and  under- 
standing, against  the  peace  &  contrary  to  the  statute  in  such 
case  provided,  and  of  eril  example. 

[The  crime  of  drunkenness  is  distinct  from  that  of  being 
a  common  drunkard  ;  the  former  is  punished  by  a  forfeit- 
ure of  two  dollars  only  :  but  in  the  latter  case,  the  offend- 
er may  be  bound  to  his  good  behaviour,  or  sentenced  t< 
the  work-house.] 

Complaint  for  breach  of  the  Sabbath. 

complains  that  L.  M.  of      ,  on  the         day  of 

being  the  Sabbath  or  Lord's  day,  about  the  hour  of 
of  said  day,  with  divers  other  persons,  to  said  grand-juroi 
unknown,  at  ,  in  said  county,  engaged  in  vain  sport 
and  recreation,  and  then  and  there  with  the  said  persons 
unknown  to  said  grand-juror,  used  and  played  the  game  of 
,  to  the  great  disturbance  of  the  good  people  of 
this  state,  against  the  peace  and  contrary  to  the  statute  in 
such  case  provided. 

Complaint  for  Disturbing  a  Religious  Meeting. 
—  complains  that  on  the  day  of  at  ,  a  uum- 
ber  of  the  good  people  of  this  state  being  then  and  there 
met  and  assembled  together,  for  the  public  worship  of 
God,  and  whilst  engaged  in  such  worship,  Q,.  R.  of 
did  wilfully  interrupt  and  disturb  said  assembly,  and  the 
worship  thereof,  by  speaking  with  a  loud  and  audible  voice 
in  said  assembly,  and  during  the  religious  worship  of  the 
same,  sundry  words,  with  the  intention  to  interrupt  and 
disturb  said  assembly,  and  the  worship  thereof,  against  the 
peace,  and  contrary  to  the  statute  in  such  case  provided, 
and  of  evil  example. 


181 

[For  this  ollence  the  magistrate  may  impose  a  fine  not 
exceeding  seven  dollars,  nor  less  than  one,  or  .bind  the  of- 
fender over  to  the  county  court,  where  he  may  be  fined 
not  exceeding  thirty-four  dollars.  The  crime  is  the  same, 
whether  the  religious  meeting  is  on  the  sabbath  or  any 
ether  day.] 

OF    CRIMES    AGAINST    PUBLIC    POMCY. 

Complaint  for  Selling  unauthorized  Lottery  Tickets. 

complains' that  on  the          day  of          at         ,  in 

said  county  of  ,  T.  H.  of  ,  did  dispose  of  and  sell 
to  A.  B.  of  ,  a  lottery  ticket  in  a  lottery  called  , 

authorized  by  the  authority  of  the  state  of  New-York,  and 
which  said  ticket  was  duly  issued  by  the  managers  of  said 
lottery  under  the  authority  of  said  state  of  New- York,  and 
of  the  number  of  and  signed  by  [describe  the  ticket]  ; 
and  for  the  sale  and  disposal  of  said  ticket  the  said  T.  H 
received  of  the  said  A.  B.  the  sum  of  dollars  ;  all  of 

which  doings  of  the  said  T.  H.,  are  against  the  peace,  and 
contrary  to  the  form  of  the  statute  in  such  case  provided. 

Complaint  for  Betting  upop  a  Horse  Race. 

complains  that  on  the         day  of         at         ,  J.  B. 

of         ,  did  unlawfully  wager  and  bet  with  J.  S.  the  sum  of 
dollars,  upon  ahorse  race,  to  be  run  between  a  cer- 
tain horse  of  the  said  J.  B.  and  a  certain  horse  of  the  said  J. 
S.  at         ,  on  the  day  of         ,  and  which  said  money 

so  waged  and  bet,  was  lodged  and  staked  in  the  hands  'of 
R.  R.  and  a  like  sum  loged  in  his  hands  by  the  said  J.  8. 
both  of  which  sums  were  by  said  wager,  to  be  delivered 
by  the  said  R.  R.  to  the  said  J.  B.  in  case  his  said  horse- 
beat  the  horse  of  the  said  J.  S.  in  said  race  ;  and  which' 
said  doings  of  the  said  J.  B.  are  against  the  peace,  and  con- 
trary to  the  statute  in  such  .case  provided. 

Complaint  for  the  forfeiture  of  a  Horse  used  in  a  horse  race. 

To  J.  P.  justice  &.c.  comes  G.  H.  grand-juror  of 
and  complains  that  on  the       day  of         at         in  said  coun- 
ty, a  certain  bay  horse  supposed  to  belong  to  O.  P.  of 
was  used  and  employed  in  a  horse  race  with  another  cer- 
tain horse  belonging  to  R.  R.  of          ,  on  which  said  race 
sundry  bets  and  wagers  were  made  of  sundry  sums  of  money, 


182 

and  particularly  a  bet  between  A.  B.  and  C.  D.  of  the  sum 
of  dollars,  whereby,  by  the  force  of  the  statute  in  such 
case  provided,  the  said  horse  hath  become  forfeited  to  this 
state.  And  the  said  grand-juror  prays  process  against  the 
said  horse,  that  he  may  seize  the  same,  and  safely  keep  said 
horse,  that  he  may  be  informed  against,  before  the  next 
county  court  for  said  county  of  ,  and  be  by  said  court 

disposed  of  according  to  law. 

G.  H.  grand-juror. 
Warrant. 

To  any  constable  &c.  Whereas  the  aforesaid  complaint 
hath  been  made  to  me  :  Wherefore  you  are  hereby  com- 
manded forthwith  to  seize  the  said  horse,  and  take  the 
same  into  your  custody,  and  the  same  keep  that  it  may  be 
informed  against,  before  the  next  county  court  for  said  coun- 
ty, and  disposed  of  according  to  law.  And  you  are  hereby 
required  to  give  notice  to  O.  P.  the  supposed  owner  of  said 
horse,  to  appear,  if  he  see  cause,  before  the  county  court 
next  to  be  holden  at  ,  in  and  for  the  county  of  and 
there  shew  reasons,  if  any  he  hath,  why  said  horse  shall 
not  be  adjudged  forfeited  to  this  state,  and  disposed  of  ac- 
cording to  law.  Hereof  fail  not,  but  of  this  process,  with 
your  doings  thereon,  make  due  return  to  the  said  county 
court. 

[The  officer's  return  will  be  that  he  seized  the  hor? •-. 
and  has  it  in  hi<  custody,  and  that  he  notified  the  party.] 

Complaint  for  Playing  Cards  for  Money. 

complains  that  on  the         day  of         at         ,  R.  R. 

of  ,  did  play  divers  games  at  cards  with  A.  B.,  C.  D. 
and  E.  F.  for  monev,  and  in  and  by  said  games  at  cards. 
the  said  R.  R.  won  the  sum  of  dollars  of  the  said  A.  B. 
and  C.  D.,  which  doings  of  the  said  R.  R.  are  against  the 
peace,  and  contrary  to  the  form  of  the  statute  &,c. 

Complaint  for  Keeping  a  Billiard  Table, 

complains  that  on  the  day  of        at         L.  M. 

of        had  and  kept,  and  still  has  and  keeps  in  his  custody 

and  possession,  and  at  or  near   his  dwelling-house,  in  said 

,  a  billiard  table,  for  the  purposes  of  gaming,   against 

the  peace  and  contrary  to  the  statute  in  such  case  provided. 


183 

Complaint  against  a  Taverner  for  Pertniting  Gaming. 

complains  that  on  the  day  of  ,  at  R.  K. 

of  ,  was  a  taverner,  and  previously  to  that  period  had 
been  duly  and  legally  appointed  and  licensed  to  keep  a 
house  of  public  entertainment  in  said  town  of  ,  and 
that  on  said  day  of  ,  sundry  persons,  viz.  A.  B., 

C.  D.  and  E.  F.  and  several  others,  to  said  grand-juror  un- 
known, played  sundry  games  at  cards,  for  money,  within 
the  house  and  tavern  of  the  said  R.  R.  and  on  which  said 
games  the  said  A.  B.,  C.  D.  and  E.  F.  bet  and  hazarded 
sundry  sums  of  money,  and  divers  sums  were  won  and  lost 
by  the  said  A.  B  ,  C.  D.  and  E.  F.  the  amount  of  which  is 
unknown  to  said  grand-juror,  and  which  said  gambling, 
playing  and  hazarding,  was  practised  with  the  knowledge, 
consent  arid  permission  of  the  said  R.  R.  within  his  said 
house  and  tavern,  against  the  peace  and  contrary  to  the 
form  of  the  statute  in  such  case  provided. 

[The  offenders  against  the  statute  must  be  bound  to  the 
county  court  for  trial.] 

Complaint  against  Mountebanks. 

complains  that  on  the  day  of  at  ,  J.  K. 

a  transient  person,  being  a  mountebank,  tumbler  and  rope- 
dancer,  did  exhibit  and  cause  to  be  exhibited,  on  a  public 
stage,  fitted  and  prepared  for  that  purpose,  in  the  tavern 
and  public  house  of  entertainment  in  said  ,  divers 

games,  tricks,  shows,  tumbling,  rope-dancing,  and  feats  of 
uncommon  dexterity  and  agility  of  body,  to  divers  good 
people  of  this  State,  then  and  there  collected,  to  witness 
the  same,  and  for  which  the  said  persons  each  paid  to  the 
said  J.  K.  the  sum  of  twenty-five  cents,  against  the  peace 
and  contrary  to  the  statute  in  such  case  provided. 

[The  offender  against  this  statute  must,  if  there  is  prob- 
able grounds  of  his  guilt,  be  bound  to  the  county  court  for 
trial.] 

In  all  criminal  prosecutions  where  a  Justice  of  the  Peace 
has  jurisdiction,  and  renders  judgment,  except  for  drunk- 
enness, profane  swearing,  breach  of  sabbath,  selling  unau- 
thorized lottery  tickets,  and  perhaps  some  other  cases 
specially  provided  for  by  statute,  an  appeal  lies  from  such 
judgment  to  the  county  court,  in  favour  of  the  prisoner, 
where  judgment  has  been  rendered  against  him  ;  but  when 


J84 

the  judgment  is  rendered  in  his  favour,  the  prosecuting 
officer  has  no  right  to  appeal  in  behalf  of  the  state.  The 
party  appealing  must  enter  into  a  recognizance,  with  sure- 
ty, for  his  appearance,  and  to  prosecute  his  appeal,  and 
pay  a  duty  of  fifty  cents,  as  in  civil  cases.  In  qui-tam 
prosecutions  for  crimes,  the  same  right  of  appeal  exists. 

Form  of  Appeal. 

[After  recording  the  judgment  say  ]  :  From  which  judg- 
ment the  said  A.  B.  moves  to  appeal  to  the  county  court 
to  be  holden  at  H  ,  in  and  for  the  county  of  H  , 

on  the  Tuesday  of  A.  D.  which  said  motion  is 
allowed  :  whereupon  the  said  A.  B.  pays  a  duty  to  this 
state  of  fifty  cents  on  his  said  appeal,  and  himself  as  prin- 
cipal, and  C.  D.  as  surety,  recognize  before  me  in  the  sum 
of  dollars,  to  the  treasurer  of  said  county  of  H  , 

for  his  appearance  before  said  county  court,  to  prosecute 
his  said  appeal  to  effect,  and  that  he  abide  and  submit  to 
the  decision  and  order  of  said  court  thereon. 

J.  P.  justice  of  the  peace. 

Recognizance  in  case  of  Appeal. 

H  county  ss.  H  day  of  A.  D.  appeared 
before  me,  A.  B.  of  ,  as  principal,  and  C.  D.  of  ,  as 
surety,  and  jointly  and  severally  acknowledged  themselves 
bound  in  a  recognizance  of  dollars  to  the  treasurer  of 
said  county  of  H  ,  conditioned  that  the  said  A.  B.  ap- 
pear before  the  county  court  next  to  be  holden  at  H  , 
in  and  for  the  county  of  H  ,  and  then  and  there  pursue 
and  prosecute  to  effect  his  said  appeal,  and  abide  the  judg- 
ment that  may  be  rendered  by  said  court  thereon.  Taken 
and  acknowledged  before  me  the  day  and  year  above  writ- 
ten. J.  P.  justice  of  the  peace. 

In  case  of  any  error  apparent  on  the  record  in  any  crim- 
inal prosecution  before  a  justice  of  the  peace,  a  writ  of 
error  may  be  brought  to  the  superior  court  the  same  as  in 
civil  cases.  Petitions  for  new  trials  may  also  be  brought 
by  the  prisoner,  and  in  both  cases  service  is  to  be  made 
by  leaving  a  copy  with  the  attorney  for  the  State,  in  the 
same  county. 

Accessaries,  or  any  person  who  snail  aid,  abet,  assist, 
fcire,  or  command  any  other  person,  to  commit  any  of  the 


J85 

albresaid  crimes,  is  equally  guilty,  and  on  conviction,  must 
suffer  the  same  punishment  as  the  principal  offender. 
Previously  to  the  revision  there  was  a  statute  abolishing 
whipping  in  all  cases  as  it  respects  females,  which  provis- 
ion as  we  are  informed  was  unintentionally  omitted  by  thrj 
committee  of  revision,  so  that  females  are  now  liable  to  be 
whipped  as  well  as  males  :  but  as  the  legislature  has  not 
intentionally  repealed  this  provision,  it  may  be  considered 
as  virtually  in  force,  and  as  there  is  something  revolting  in 
corporeal  punishment,  especially  as  applicable  to  females, 
it  would  seem  most  proper  that  whipping  should  not  be  in- 
flicted on  females,  until  the  legislature  act  upon  the  subject, 
when  it  will  be  known,  whether  they  will  restore  the  law, 
or  make  a  retrograde  movement  in  legislation,  and  revive 
a  punishment  which  belongs  to  a  barbarous  age. 

IS  o  suit  or  action  can  be  brought  on  any  penal  statute,  for 
the  recovery  of  a  forfeiture  by  jmv  person  who  may  law- 
fully sue  for  the  same,  after  tl  e  expiration  of  one  year 
from  the  commission  of  the  offence.  No  person  can  be 
prosecuted  for  any  crime  punishable  by  imprisonment  in 
New  Gate  prison,  unless  the  complaint  shall  be  exhibited 
within  three  years  next  after  the  crime  shall  have  been 
committed  ;  and  no  person  shall  be  prosecuted  for  any 
other  crime  or  misdemeanor,  except  those  punishable  with 
death,  unless  complaint  or  information  be  exhibited  within 
one  year  after  the  offence  was  committed. 

All  fines,  penalties  and  forfeitures  received  by  justices 
of  the  peace  in  pursuance  of  any  judgment  rendered  by 
them,  which  are  not  otherwise  expressly  appropriated,  are 
to  be  paid  to  the  treasurer  of  the  town  where  they  reside, 
and  it  is  the  duty  of  the  town  treasurer,  at  least  within 
one  year  after  the  judgment  is  rendered,  to  call  on  the 
justices  of  the  town  to  account  for  the  fines,  forfeitures, 
and  penalties  they  may  have  received,  in  pursuance  of 
such  judgment. 

When  for  any  offence  it  is  provided  by  statute  that  the 
offender  be  sent  to  a  work-house  or  house  of  correction, 
and  there  is  no  work-house  in  the  town,  they  must  be  sent 
to  the  county  gaol,  which  is  the  common  work-house  and 
house  of  correction  for  the  whole  county — They  must  be 
sentenced  and  ordered  to  be  confined  there,  as  a  work- 
house and  house  of  correction. 
16* 


186 

A  Justice  of  the  Peace  is  not  personally  liable  for  any 
act  done  by  him,  of  a  judicial  nature,  whether  in  civil  or 
criminal  proceedings,  unless  he  act  corruptly  or  intentionally 
transcend  his  jurisdiction  ;  when  he  may  become  liable  to  the 
party  injured,  although  he  professed  to  act  in  his  judicial 
character.  But  as  it  respects  his  ministerial  acts  and  du- 
ties, such  as  signing  writs,  issuing  warrants,  administering 
oaths,  taking  depositions,  and  the  acknowledgment  of  deeds, 
&c.  if  a  justice  refuses  to  act,  or  is  guilty  of  gross  negli- 
gence, he  makes  himself  liable  to  the  party  injured.  Where 
his  authority  is  discretionary,  he  does  not  make  himself 
liable  for  refusing  to  do  any  official  act.  Taking  bonds  on 
issuing  writs  is  a  discretionary  act,  as  it  respects  the  suffi- 
ciency of  them  ;  but  where  the  law  expressly  require? 
surety,  if  the  justice  neglects  to  take  it,  he  becomes  per- 
sonally liable  to  the  party  injured  ;  but  if  he  takes  bonds 
with  surety,  where  that  is  required,  or  without,  where 
surety  is  not  required,  which  are  apparently  good,  but 
prove  to  be  insufficient,  he  is  not  personally  responsible  (a). 


(a)  Swf.  Dig.  546  i  1  Root  165 


PART  II. 


THE  POWERS  AND  DUTIES  OF  CONSTABLES. 

THE  Office  of  Constable  is  of  great  antiquity  in  England, 
the  knowledge  of  it  extending  beyond  the  .period  of  any 
known  statute  relating  to  it.  This  office,  like  that  of  justice 
of  the  peace,  and  most  others,  has  undergone  a  gradual  but 
important  change,  since  its  first  institution,  which  was  for 
the  conservation  of  the  peace.  The  office  of  Constable 
was  brought  by  our  ancestors  from  England,  and  has  existed 
here  since  the  settlement  of  the  colony. 

It  is  provided  by  statute  that  every  town  shall,  at  their 
annual  meeting  appoint  one  Constable,  to  collect  the  state 
taxes,  and  such  additional  number,  as  they  may  think  ex- 
pedient, not  exceeding  seven.  They  must  take  the  oath 
prescribed  in  the  constitution  for  executive  officers,  on  or 
before  the  first  Monday  in  January  in  each  year,  and  hold 
their  office  until  the  next  annual  meeting  of  the  town,  or 
until  others  are  chosen  and  sworn  (a).  No  Constable  can 
be  legally  chosen  but  at  annual  town  meeting,  except  in 
cases  where  there  is  a  vacancy  by  the  death,  refusal  to 
serve,  or  removal,  of  any  Constable  thus  appointed,  when 
such  vacancy  may  be  filled  at  any  legal  town  meeting, 
whether  it  be  the  annual  meeting  or  not.  This  provision 
extends  to  all  town  officers  (6).  It  is  the  duty  qf  the  se- 
lect-men to  cause  Constables,  and  all  other  town  officers, 
of  whom  oath  is  required,  immediately  after  their  appoint- 
ment, to  be  summoned  to  appear  before  some  justice  of  the 
peace,  and  to  take  the  oath  prescribed  by  law  ;  and  if  any 
such  officer  refuses  to  be  sworn  and  execute  the  duties  of 
his  office,  he  incurs  a  forfeiture  of  five  dollars  to  the  town, 
unless  he  can  make  it  appear  to  the  court,  before  which 
he  may  b«  sued  for  the  recovery  of  such  forfeiture,  that 
he  is  oppressed  by  such  appointment,  or  that  others  are 

(a)  St.  132.  (b)  St.  458 


188 

unduly  exempted.  If  he  accepts  the  office,  or  does  not 
declare  his  refusal  to  accept,  yet  neglects  and  refuses  to 
perform  the  duties  thereof,  he  forfeits  three  dollars  to  the 
town  ;  and  in  such  cases  too,  would  be  liable  to  the  per- 
son injured  by  his  neglecting  or  refusing  to  perform  his 
official  duties. 

For  convenience  we  copy  the  Oath  :  "  You  do  solemnly 
swear  (or  affirm  as  the  case  may  be)  that  you  will  support 
the  Constitution  of  the  United  States,  and  the  Constitution 
of  the  State  of  Connecticut,  so  long  as  you  continue  a  cit- 
izen thereof;  and  that  you  will  faithfully  discharge,  ac- 
cording to  law,  the  duties  of  the  office  of  [Constable  for 
the  town  of  H  ,]  to  the  best  of  your  abilities. — .So  help 
you  Gocf." 


CHAPTER  I. 

Of  the  Powers  and  Duties  of  Constables,  as  Peace  Officers,  #c. 

It  is  provided  by  statute,  that  Constables  shall  receive  all 
hue-and-cries,  and  the  same  diligently  pursue  to  full  effect  ; 
and  that  when  no  justice  of  the  peace  is  near  at  hand,  they 
may  put  forth  pursuits,  or  hue-and-cries,  after  murderers, 
peace-breakers,  thieves,  robbers,  burglarians,  and  all  cap- 
ital or  criminal  offenders  :  and  that  without  a  warrant  they 
may  apprehend  such  as  are  guilty  of  profane  swearing, 
drunkenness,  or  Sabbath-breaking,  if  taken  in  the  act,  or 
on  present  information  of  others,  and  carry  them  before 
the  next  justice  of  the  peace,  to  be  dealt  with  according  to 
law  (a). 

This  statute  would  seem  by  implication,  to  take  away  the 
authority  of  Constables,  to  make  arrests  without  a  warrant, 
except  by  putting  forth  pursuit,  by  hue-and-cry,  where  no 
Justice  is  at  hand  to  do  it,  or  for  the  three  offences  men- 
tioned ;  but  as  their  authority  as  conservators  of  the  peace 
is  more  extensive  at  common  law,  the  exercise  of  which  is 
important  to  the  preservation  of  the  peace,  and  the  appre- 
hension of  criminals,  it  cannot  be  considered  as  taken  away 
by  mere  implication.  Previously  to  the  late  revision  <jjf 

(a)  St.  132. 


189 

the  statutes,  it  was  a  part  of  the  constable's  oath,  copied 
from  that  used  in  Eng[and,  that  he  would  "  preserve  the 
public  peace  of  the  place  for  which- he  was  appointed,  and 
of  this  state,  and  to  the  best  of  his  endeavours,  see  all 
watches  and  wards  executed  and  duly  attended."  Sheriffs 
are  constituted  by  statute,  conservators  of  the  peace  within 
their  counties,  and  are  expressly  authorised  with  force  and 
a  strong  hand  when  necessary,  to  suppress  all  tumults,  ri- 
ots, routs,  and  unlawful  assemblies,  and  to  apprehend  with- 
out warrant,  those  who  are  in  the  disturbance  of  the  peace, 
and  to  carry  them  before  any  justice  of  the  peace  of  the 
county,  that  they  may  be  proceeded  against  according  to 
law,  and  as  the  nature  of  the  offence  may  require  (e).  For- 
merly, the  statute  giving  these  powers  to  Sheriffs,  contain- 
ed an  express  provision,  giving  to  Constables  the  same  au 
thority  and  powers  within  their  towns,  as  were  conferred  on 
Sheriffs  within  their  counties  ;  but  this  provision  was  omit- 
ted^it  the  revision.  In  the  act  relating  to  Constables,  novr 
in  force,  it  is  provided  that  they  shall  have  the  same  pow- 
er within  their  own  towns,  to  serve  and  execute  all  lawful 
writs,  precepts  and  warrants,  directed  to  them,  as  sheriffs 
hare  within  their  counties,  and  shall  be  liable  in  the  same 
manner  for  any  neglect,  default  or  misconduct  in  their  of- 
fice. This  provision,  givingto  Constables  the  same  authority 
within  their  towns  as  Sheriffs  have  within  their  counties, 
extends  only  to  the  service  of  writs,  and  the  execution  of 
process  ;  but  as  they  possess  at  common  law  the  same  pow- 
er as  conservators  of  the  peace  within  their  precincts,  as 
Sheriffs  do  within  their's,  and  as  the  same  authority  was 
expressly  given  to  them  by  statute  until  the  revision,  and 
is  not  now  expressly  restrained,  it  is  hardly  to  be  supposed 
that  the  legislature  intended  to  take  away  or  restrict  the  ' 
authority  they  possess  at  common  law  as  conservators  of 
the  peace. 

(/)  At  common  law,  Constables  not  only  have  the  pow- 
er, but  it  is  their  duty,  to  arrest  all  persons  who  break  the 
peace  in  their  presence,  and  to  endeavour  to  part  all  per- 
sons engaged  in  affrays,  and  arrest  them  when  necessary, 
for  which  purpose  they  may  command  the  assistance  of 
others,  and  all  persons  refusing  to  obey,  are  liable  to  be  pun- 
ished by  fine  and  imprisonment.  They  may  arrest  all  pet' 

(e)  St.  15.        (/)4Blac.  Com.  292, 


190 

sons  who  contend  with  hot  and  angry  words,  and  threaten 
to  beat,  kill,  or  offer  bodily  harm  to  another,  and  detain 
them  until  their  heat  be  over,  or  carry  them  before  a  jus- 
tice of  the  peace,  that  they  may  be  proceeded  against  ac- 
cording to  law  ;  hut  such  justice  cannot  fine  them,  or  order 
then;  under  bonds  to  keep  the  peace,  without  a  complaint 
in  writing  is  presented  against  them,  and  a  warrant,  by 
which  they  must  be  arrested.  If  an  affray  occur  in  a 
house,  Constables  may  break  open  the  doors  to  sup- 
press it,  and  preserve  the  peace  ;  and  if  the  affrayers 
fle?  into  another  house,  and  they  are  followed  by  the 
Constables  in  fresh  pursuit,  they  may  break  open  the  doors 
of  tho  house  to  which  they  retreat,  to  take  them  (g). 

Such  persons  as  go  armed  with  offensive  and  dangerous 
weapon:-:,  or  accompanied  with  unusual  attendants,  to  the 
terror  of  the  people,  may  be  arrested  by  a  Constable  or 
Sheriff,  and  taken  before  a  justice  of  the  peace.  Consta- 
bles, as  well  as  justices  ofthe  peace,  and  Sheriffs,  are  au- 
thorized and  required  to  suppress  riots,  and  when  three  or 
more  persons  come  together  to  do  an  unlawful  act  with 
force  and  violence,  against  the  peace,  or  to  the  manifest 
terror  ofthe  people,  it  is  their  duty  to  resort  to  the  place, 
or  as  near  as  they  can  safely  come  to  such  rioters,  and  with 
an  audible  voice  command,  or  cause  to  be  commanded,  si- 
lence, while  proclamation  is  making,  and  thereupon  make 
proclamation  in  these  words,  or  to  the  like  effect  :  "  In 
the  name  and  by  authority  ofthe  State  of  Connecticut,  I 
charge  and  command  all  persons  assembled  immediately  to 
disperse  themselves,  and  peaceably  to  depart  to  their  habit- 
ations, or  to  their  lawful  business,  upon  the  pains  and  pen- 
alties ofthe  law."  And  if,  after  such  proclamation  has  been 
made,  the  persons  so  unlawfully  and  riotously  assembled, 
shall  not  disperse,  the  Constable  or  other  officer  making 
such  proclamation,  is  authorized  to  command  assistance,  and 
to  seize  and  apprehend  such  persons  so  unlawfully  contin- 
uing together,  and  forthwith  carry  them  before  a  justice  of 
peace,  that  they  may  be  proceeded  against  according  to  law. 
And  if  in  dispersing  or  apprehending  such  rioters,  or  in  at- 
tempting to  do  the  same,  any  of  them  shall  be  killed,  maim- 
ed or  hurt,  by  reason  of  their  resistance,  such  Constable  or 
other  officer,  and  all  persons  aiding  him,  shall  be  discharg- 

(/?)  1  Root,  66. 


•  •<!   and  indemnified  for  such  killing  or  injuring,  as  well 
against  the  public  as  against  all  persons  whatsoever  (6). 

2.  May  arrest  felons  without  •warrant. 

A  Constable  may  arrest  felons  and  criminals  without  a 
warrant ;  and  also  persons  charged,  where  a  felony  has  ac- 
tually been  committed,  and  there  are  probable  grounds  of 
suspicion  against  them,  although  they  do  not  turn  out  to  be 
guilty  (c).  When  a  felony  has  been  committed,  a  Consta- 
ble may  arrest  and  imprison  the  felon  if  necessary,  until  he 
can  be  carried  before  a  justice  of  the  peace,  and  complaint 
be  made  against  him  ;  and  after  demand  of  entrance  and  re- 
fusal, he  may  break  open  doors  to  arrest  the  felon  ;  and  if 
in  attempting  to  make  such  arrest,  the  Constable  or  any 
person  coming  to  his  assistance,  notice  of  the  cause  of  his 
coming  having  been  given,  is  killed,  it  is  murder  ;  and  if 
the  felon  make  resistance,  so  that  he  cannot  be  taken,  and 
he  be  killed  by  the  Constable  or  other  person  coming  to 
his  assistance,  it  is  justifiable  homicide  (d}.  A  private  per- 
son, likewise,  who  is  present  when  any  felony  is  commit- 
ted, can  not  only  be  justified  in  arresting  the  felon,  but  if 
he  escape  through  his  negligence,  he  subjects  himself  to 
fine  and  imprisonment  ;  and  he  may  justify  breaking  open 
doors  to  arrest  such  felon  ;  and  if  the  felon  cannot  be  oth- 
erwise taken,  and  he  be  killed,  it  is  justifiable  ;  but  if  the 
felon  kill  the  person  attempting  to  arrest  him,  it  is  mur- 
der (e).  A  private  person  may  also  make  an  arrest  on  prob- 
able suspicion,  but  cannot  justify  breaking  open  doors  to 
do  it ;  and  if  no  felony  has  been  committed,  or  the  person 
arrested  on  suspicion  is  notguilty,  he  cannot  be  justified  (Vi). 

Constables  are  empowered  and  required,  without  war- 
rant, to  apprehend  all  persons  who  are  guilty  of  a  violation 
of  the  Sabbath,  provided  they  are  taken  on  sight  or  imme- 
diate information  of  others,  and  to  carry  them  before  a  justice 
of  the  peace  ;  and  for  this  purpose,  they  may  command  all  ne- 
cessary assistance,  and  any  person  refusing  to  afford  assist- 
ance, incurs  the  same  penalties  as  for  refusing  to  assist 
Sheriffs  and  Constables  in  the  execution  of  their  office.  It 
is  also  their  duty  to  apprehend  without  a  warrant,  upon  per- 
sonal view,  all  persons  who  sell  or  expose  for  sale  any  spir- 

.  (b)  Stat.  384.  (c)  4  Blac.  Com.  292.  (d)  5  Co.  91,4  Blac.  Com.  292. 
(e)  2  Hal.  P.  C.  77.     (h]  4  Blac.  Com.  293. 


195 

itous  or  other  liquors,  or  articles  of  prorision,  in  a  tent, 
waggon,  or  any  other  way,  except  persons  regularly  li- 
censed at  their  store  or  dwelling  house,  within  two  miles  of 
an  assembly  of  people  convened  for  religious  worship  in 
the  field  ;  and  to  carry  them  before  the  next  justice  of  the 
peace,  that  they  may  be  dealt  with  according  to  law  ; 
whereupon  such  Justice,  on  the  oath  of  the  officer  appre- 
hending such  offenders,  sh  .11  issue  a  warrant,  and  cause 
them  to  be  arrested,  and  proceed  to  a  hearing  and  trial  of 
such  matter  of  complaint  according  to  the  due  course  of 
law  (g-). 

3.  It  is  the  duty  of  Constables  to  assist  the  moderator  in 
preserving  order,  on  being  requesting  by  him,  in  ail  town 
and  society  meetings.  Where  any  person  or  persons  dis- 
turb any  electors',  town  or  society  meeting,  or  the  meet- 
ings of  any  other  communties  in  which  a  moderator  is  cho- 
sen, and  presides,  by  making  or  causing  any  noise,  tumult, 
or  quarreling,  whereby  such  meeting  is  prevented  from 
proceeding  in  a  peaceable  and  orderly  manner  to  the  choice 
of  a  moderator  ;  or  if  after  such  choice,  any  person  shall 
abuse  or  interrupt  the  moderator  in  the  discharge  of  his 
duty  ;  or  after  the  moderator  has  commanded  silence,  shall 
speak  in  such  meeting  without  liberty  from  the  moderator, 
except  to  ask  permission  so  to  do,  each  person  so  offending 
incurs  a  forfeiture  of  not  less  than  one,  nor  more  than  sev- 
en dollars  ;  and  in  all  such  cases,  it  is  the  duty  of  any  Con- 
stable, Sheriff,  or  deputy  Sheriff,  on  being  ordered  or  re- 
quested by  the  moderator  or  presiding  officer  in  such  meet- 
ing, and  in  case  such  offenders  refuse  to  submit  to  the  au- 
thority of  the  moderator,  to  take  them  into  custody,  and  if 
necessary,  to  remove  them  out  of  such  meeting,  and  to  detain 
them  until  they  conform  to  order  ;  and  if  need  be,  until  the 
meeting  is  closed.  Such  Constable,  or  other  officer,  has 
power  to  command  all  necessary  assistance,  as  in  cases  of 
preserving  the  peace  and  suppressing  riots,  and  any  person 
refusing  to  assist  when  so  commanded,  shall  be  liable  to  the 
same  penalties  as  for  refusing  to  assist  sheriffs  and  consta- 
bles in  the  execution  of  their  office  ;  provided  that  no  per- 
son commanded  to  assist  shall  be  deprived  of  his  right  to 
vote  in  such  meeting,  nor  such  offenders,  any  longer  than 
they  refuse  to  conform  to  order  (t). 

(g)  Stat.  327.          (t)  Stat.  326. 


193 

4.  -Uf  their  authority  as  informing  officers. 
Constables"  are  authorized  to  act  as  informing  officers  in 
certain  cases,  especially  provided  for  by  different  statutes, 
but  their  seems  now  to  be  no  general  provision  giving  them 
this  authority.      Previously  to  the  revised  statutes,  they 
were  required  to  make  diligent  search  after  tiplers,  retail- 
ers of  strong  drink  without  license,  and  such  as^frequent 
taverns  and  spend  their  time  idly,  and  to  warn  them  to  for- 
bear, and  to  warn  such  persons  as  keep  such  houses  not  to 
suffer  any  such  individuals  to  frequent  them  ;  and  were  al- 
so  directed  to  make  due  presentment  of  all  breaches  of 
law  coming  to  their  knowledge,   to  some  proper  authority, 
once  in  every  month.       Under  this  authority,   which   ap- 
pears to  be  somewhat  restricted,  Constables  made  present- 
ment of  all  crimes  and   offences   which   occurred  within 
their  towns  ;  but  there  is  now  no  general  law  directing  or 
authorising   Constables  to    make  presentment  of  crimes  ; 
they  cannot  therefore  possess  the  authority  to  act  as  in- 
forming officers,  except  in  particular  cases,  where  they  are 
expressly  empowered.       And    if  they  do  not  possess  this 
authority  by  statute,  it  certainly  cannot  be  claimed  as  per- 
taining to  their  office  at  common  law,  as  in  England,  consta- 
bles have  no  power  whatsoever  as  prosecuting  officers,  nor 
is  there  any  such  officer  known  to  their  laws  ;  a  present- 
ment can  only  be  made  by  a  grand-jury,  and  the  only  infor- 
mations known,    are  those  filed  ex-ojjicio  by   the  attorney 
general,  in  the  name  of  the  king,  those  in  which  the  king 
is  only  a  nominal  prosecutor,  being  filed  by  the  master  of 
the  crown  office,  at  the  relation  or  complaint  of  some  pri- 
vate individual  or  common  informer,  or  informations  qui- 
tam  in  the  name  of  the  king,  and  a  subject,  similar  to  qui- 
tam  informations  here.    Moreover,  the  act  relating  to  grand- 
jurors,  provides  that  for  all  crimes,  except  capital  offences, 
and  those  punishable  with  imprisonment  in  Newgate  prison 
for  life,  in  which  cases  a  bill  of  indictment  must  be  found  by 
a  grand-jury,  presentment  may  be  made  by  grand-jurors, 
or  information  may  be  exhibited  by  the  attorney   for  the 
State,  in  the  county  where  the  crime  was  committed.     This 
provision   seems   negatively  to  take  away  the  authority  of 
Constables  to  act  as  informing  officers,  by  directing  that  all 
crimes  where  an  indictment  is  not  required,  may  be  prose- 
17 


194 

cuted  by  presentment  or  complaint  of  a  grand  juror,  or  in- 
formation by  the  attorney  for  the  State. 

Constables  may  act  as  informing  officers  for  all  breaches 
of  the  Sabbath,  for  all  offences  against  the  act.  relating  to 
licensing  and  regulating  taverns,  and  suppressing  unlicens- 
ed houses,  for  disturbing  any  religious  meeting,  whether  on 
the  Sabbath  or  any  other  da}',  for  selling  spiritous  or  other 
liquors,  within  two  miles  of  any  assembly  of  people  in  the 
field  for  religious  worship,  and  for  the  prosecution  of  com- 
mon drunkards,  common  idlers,  common  prostitutes,  vaga- 
bonds, and  other  offenders  who  are  liable  to  be  sentenced 
to  the  work-house  and  house  of  correction,  and  perhaps  in 
some  other  cases,  especially  provided  for. 


CHAPTER  II. 

Of  the  powers  and  duties  of  Constables  ascollcctors  of  lazes, fyc. 

I .  The  State  taxes  must  be  collected  by  a  Constable,  as 
the  law  requires  that  one  Constable  shall  be  appointed  in 
each  town  to  collect  the  State  taxes  ;  town,  society  and  oth- 
er taxes  may  be  collected  by  any  person  who  may  be  cho- 
sen a  collector,  but  it  is  customary  to  appoint  constables  to 
collect  all  town  taxes.  The  practice  is,  to  appoint  one  of 
the  constables  of  each  town,  collector  of  the  State  taxes, 
and  one  or  more  collector  of  the  town  taxes.  It  is  the  du- 
ty of  the  town  clerk  in  each  town,  annually,  in  the  month 
of  May,  to  return  to  the  treasurer  of  the  state  the  name  of 
the  constable  appointed  to  collect  the  state  taxes  ;  and  for 
neglect,  he  forfeits  four  dollars.  It  is  the  duty  of  the  treas- 
urer to  make  out  and  send  his  warrants,  directed  to  the 
collector  of  any  tax  granted  by  the  general  assembly,  in  each 
town,  at  least  three  months  before  the  time  of  payment  of 
such  tax,  commanding  him  to  levy,  collect,  and  pay  the  same 
into  the  treasury  of  the  state  by  the  time  appointed  ;  where 
no  time  is  fixed  for  payment,  the  tax  must  be  paid  before 
the  last  day  of  August  in  each  year.  The  collectors  of 
town  taxes  must  collect  and  pay  them  to  the  treasurer  of 
the  town  by  the  time  limited. 

When  a  town  tax  is  voted,  it  i?  the  duty  of  the  select- 


men  to  make  out  rate-bills  for  the  same,  under  their  hands, 
specifying  the  proportion  each  individual  is  to  pay  accord- 
ing to  the  list,  and  to  apply  to  a  justice  of  the  peace,  whose 
duty  it  is  to  issue  a  warrant  for  the  collection  of  such  tax, 
directed  to  the  collector  appointed  for  that  purpose.  The 
form  of  a  warrant  for  the  collection  of  taxes,  is  given  in  the 
statutes,  page  245,  which  renders  it  unnecessary  to  give  one 
in  this  work.  A  tax-warrant  gives  a  collector  the  same 
power  to  levy  and  collect  the  tax,  as  an  execution  does  to 
an  officer  to  levy  and  collect  the  amount  of  a  judgment  ; 
he  can,  if  necessary,  command  the  assistance  of  others  in 
the  same  manner,  and  any  person  refuging  to  assist  him  in- 
curs the  same  forfeiture  as  for  refusing  to  assist  a  sheriff  or 
constable  in  the  execution  of  his  office,  provided  the  col- 
lector shall  shew  and  read  his  warrant  to  the  persons  whose 
assistance  is  commanded.  A  collector  must  also  proceed 
in  nearly  the  same  manner  in  the  collection  of  taxes,  as  an 
officer  does  in  the  collection  of  an  execution.  Before  an 
officer  can  levy  an  execution,  he  must  make  demand  of  the 
debtor  of  payment  of  the  same  ;  and  a  collector,  before  he 
can  levy  for  a  tax,  must  appoint  a  time  and  place  for  receiv- 
ing the  tax,  and  give  to  every  person  against  whom  a  tax  is 
made,  reasonable  warning  and  opportunity  to  pay  the  same- 
A  question  may  arise  under  this  provision,  as  to  what  is  a 
reasonable  warning  and  opportunity,  or  whether  a  general 
warning  of  the  time  and  place,  by  advertisement  in  the  pub- 
lic papers,  or  notice  posted  upon  the  signposts  and  at  pub- 
lic houses,  in  the  town,  would  be  sufficient  to  justify  a  col- 
lector in  making  a  levy.  As  it  i»  provided  that  the  collect- 
or must  give  to  every  person,  reasonable  warning  and  oppor- 
tunity, it  would  seem  that  they  must  have  actual  notice  of 
the  tax  in  the  hands  of  the  collector,  and  reasonable  op- 
portunity to  pay  the  same.  It  is  evident  that  a  general  no- 
tice in  either  of  the  ways  mentioned,  or  any  other,  might 
not  convey  notice  to  many  individuals  whose  names  were 
in  a  tax  bill,  who  consequently  would  have  no  warning  or 
opportunity  afforded  them  to  pay  their  taxes.  The  clause 
"  on  failure  of  payment,"  taken  in  connection  with  the  pre- 
ceding part  of  the  sentence,  means,  failure  of  payment  after 
reasonable  warning  and  opportunity  have  been  given. 
There  must  be  some  neglect  or  default  therefore,  on  tke 
part  of  the  person  against  whom  the  tax  is  made,  before  his 


property  can  be  taken.  Actual  notice  and  demand,  with  a 
reasonable  time  allowed  to  pay  the  tax,  it  would  seem 
would  justify  the  collector  in  making  a  levy,  without  an\ 
appointment  of  a  time  and  place  of  receiving  the  taxes  gen- 
erally, as  the  object  of  the  appointment  of  a  time  and  place, 
is  to  give  the  persons  warning,  and  an  opportunit}'  to  pay 
their  taxes,  and  actual  notice  and  demand  is  answering  this 
object  more  effectually  ;  besides  "iuch  notice  and  demand, 
with  a  reasonable  opportunity,  is  appointing  a  time  and 
place  to  each  individual.  No  levy  or  distress  can  be  made 
for  any  state  tax,  until  within  two  months  of  the  time  the 
tax  is  payable. 

When  it  becomes  lawful  for  the  collector  to  levy  his  war- 
rant, he  must  take  goods  or  chattels  if  they  can  be  found, 
and  proceed  with  them  in  the  same  manner  as  where  per- 
sonal property  is  taken  on  execution.  If  no  goods  or  chat- 
tels are  tendered,  or  can  be  found,  the  collector  may  levy 
his  warrant  on  the  real  estate,  or  the  body  of  any  person 
against  whom  a  tax  is  made,  and  commit  him  to  gaol,  where 
he  must  remain  until  the  tax  and  costs  are  paid,  or  he  is 
discharged  by  due  course  of  law.  The  person  committed 
to  gaol  may  give  notice,  or  cite  one  or  more  of  the  select- 
men of  the  town,  and  take  the  benefit  of  the  oath  provided 
for  poor  debtors,  in  which  case  the  town  becomes  respon- 
sible for  the  tax,  and  the  costs  occasioned  by  the  commit- 
ment, and  if  such  town  neglect  or  refuse  to  pay  the  same, 
the  collector  has  a  right  of  action  to  recover  the  amount  of 
the  tax  and  cost,  of  such  town,  provided  the  commitment  be 
made  within  eight  months  after  such  tax  becomes  due  and 
payable.  But  demand  must  be  made  of  the  town  before  an 
action  can  be  brought.  And  the  collector  is  entitled  to  the 
same  fees  as  is  allowed  to  sheriffs  for  the  levy  of  executions. 
When  a  collector  levies  his  warrant  on  real  estate,  he  must 
advertise  the  time  and  place  of  sale,  three  weeks  in  a  news 
paper  printed  in  the  same  county  or  an  adjoining  county, 
six  weeks  before  the  time  of  sale  ;  and  at  the  time  and  place- 
he  must  sell  at  public  auction,  sufficient  estate  to  pay  the 
tax,  costs  and  charges,  and  give  to  the  purchaser  a  warran- 
tee deed  thereof,  to  be  lodged  in  the  office  of  the  town 
clerk,  where  the  land  lies,  but  to  remain  unrecorded  twelve 
months  ;  during  which  period,  the  owner,  a  creditor  of  the 
owner,  a  mortgagee  of  such  land,  a  purchaser,  or  any  other 


197 

person  claiming  any  interest  therein,  has  a  right  to  tender 
to  such  purchaser  the  amount  of  the  purchase  money,  with 
twelve  per  cent  interest,  whereby  such  deed  becomes  void, 
and  must  be  delivered  up  to  the  person  tendering  or  paying 
the  money.  But  if  the  purchase  money  and  interest  is  not 
paid  within  the  year,  the  deed  is  to  be  recorded,  the  title 
is  confirmed  and  complete.  Where  the  person  against 
whom  the  tax  is,  possesses  only  the  interest  of  a  mortgagor, 
or  an  equity  of  redemption  in  land,  a  sale  cannot  be  made  by 
metes  and  bounds,  for  any  tax  arising  upon  a  list  made  up 
after  the  execution  of  such  mortgage,  btjt  the  collector 
must  sell  such  proportion  of  the  interest  of  the  mortgagor 
against  whom  the  tax  is  made,  as  the  amount  of  the  tax  and 
charges  bears  to  his  whole  interest  in  the  mortgage  premi- 
ses. But  for  a  tax  arising  upon  a  list  made  before  the  ex- 
ecution of  a  mortgage,  the  land  may  be  sold  by  metes  and 
bounds,  the  same  as  in  other  cases,  provided  the  person  has 
no  other  estate  or  lands,  whereby  the  tax  may  be  satisfied. 
An  estate  less  than  a  fee  simple,  either  for  life  or  a  term  of 
years,  may  be  sold  for  taxes,  whilst  it  belongs  to  the  person 
against  whom  the  tax  is  made,  but  any  estate  in  land,  less 
than  a  fee,  is  not  liable  to  be  sold  for  taxes,  after  it  has  been 
transferred,  or  attached  ;  neither  is  the  interest  which  a 
person  has  in  the  right  of  his  wife.  But  the  real  estate  of 
which  any  person  is  seized  and  possessed  in  his  own  right 
in  fee,  stands  charged  with  his  lawful  taxes,  and  may  be 
sold  for  the  same  within  one  year  after  the  taxes  become 
due,  notwithstanding  any  transfer  thereof,  or  attachment 
thereon,  provided  such  tax  arose  upon  a  list  made  up  before 
the  transfer  or  attachment,  or  other  lien  upon  the  land  took 
place,  and  provided  no  other  real  estate,  or  personal,  of  such 
person,  can  be  found  sufficient  to  satisfy  such  taxes  and  the 
legal  costs.  In  such  cases  the  land  transferred  or  attached, 
is  liable  not  only  for  the  amount  of  any  tax  which  arose 
upon  that  part  of  the  person's  list  arising  from  the  assess- 
ment of  the  same  land,  but  for  the  whole  of  his  taxes  arising 
upon  a  list  made  before  the  transfer  of  the  land.  No  prop- 
erty which  is  by  law  exempted  from  being  taken  on  execu- 
tion for  debt,  can  be  distrained  by  a  warrant  for  taxes. 

Collectors  have  the  same  authority  in  other  towns,  as  in 
that  for  which  they  are  chosen,  to  collect  taxes  of  non-res- 
idents, or  persons  residing  in  such  towns,   against  whom 
17* 


198 

they  have  taxes  in  their  rate-bills,  and  may  at  anytime  col 
lect  such  taxes  after  the  expiration  of  the  year  for  which 
they  are  appointed. 

The  civil  authority  and  select  men  of  each  town  are  au- 
thorised to  abate  the  one  eighth  part  of  all  State  taxes,  and 
to  apply  the  same  for  the  relief  of  the  indigent  or  the  unfor- 
tunate in  the  abatement  in  whole  or  in  part  of  their  partic- 
ular rates,  and  a  certificate  of  such  abatement  being  made 
by  the  civil  authority  and  select-men,  the  treasurer  must 
allow  the  same  to  the  credit  of  the  collector  of  such  tax. — 
But  such  eighth  part  must  actually  be  abated,  and  not  in 
whole  or  in  part  collected  and  retained  in  the  town  treasu- 
ry, as  this  would  defeat  the  object  of  the  law,  which  is  to 
relieve  the  indigent  and  unfortunate,  and  if  such  abatement 
was  not  actually  made,  the  certificate  would  be  untrue.  A 
further  abatement  may  be  made,  but  the  town  will  become 
responsible  for  the  amount  thereof. 

When  the  collector  of  any  State  tax  shall  neglect  and  fail 
to  pay  and  settle  the  same  with  the  treasurer  by  the  time 
appointed,  the  select-men  may  bring  a  suit  against  him,  in 
the  name  of  the  town,  and  attach  his  whole  estate,  or  his 
person,  and  the  whole  estate  of  which  he  is  possessed, 
whether  attached  or  not,  shall  be  liable  to  answer  the  judg- 
ment that  may  recovered  against  him,  notwithstanding  anj 
subsequent  disposition  thereof  by  such  collector,  or  any 
subsequent  demand  or  attachment  by  a  creditor  ;  or  the 
State  treasurer  within  four  months,  may  issue  an  execution 
against  such  collector.  And  if  the  collector  of  any  town  or 
society  tax  shall  fail  to  collect  and  pay  the  same  by  the 
time  limited,  the  select  men  of  the  town,  or  committee  of 
the  society,  may  demand  the  arrearages  due  from  any  such 
negligent  collector,  and  on  failure  of  payment,  may  apply  to 
a  justice  of  the  peace  for  an  execution  against  him.  And 
such  justice  is  authorised  to  issue  an  execution  for  the 
amount  of  such  arrearage  against  the  goods  and  person  of 
such  collector,  to  be  levied  in  the  same  manner  as  execu- 
tions issued  on  judgments. 

Collectors  of  state  taxes  are  entitled  to  three  and  a  hall 
per  cent  on  all  the  monies  they  may  collect  and  pay  into  the 
treasury,  and  seven  cents  per  mile  for  travel,  provided 
they  make  a  full  settlement  with  the  treasurer  within  twen- 
days  after  the  time  limited  in  their  warrant  for  the  collec- 


iion  of  any  tax  ;  but  if  a  settlement  is  not  made  within  the 
twenty  days,  the  collector  is  not  entitled  to  any  compensa- 
tion (a). 

2.  It  is  the  duty  of  the  Constables,    in   their  respective 
towns,  to  warn  all  the  electors  thereof,  to  meet  on  the  first 
Monday  of  April  of  each  year,  at  the  usual  place  of  holding 
elections,  at  nine  o'clock  in  the  morning.      At  least  five 
days  warning  previous  to  the  meeting  must  be  given  ;  which 
may  be  done  by  posting  up  notice  of  such  meeting  on  the 
several  sign-posts  of  the  town,  and  at  such  other  places  as 
they  may  deem  necessary  (6). 

3.  The  Constables  of  each  town,  together  with  the  civil 
authority,  select-men  and  grand-jurors,  on  the  first  Monday 
of  January,  nominate  the  taverners  for  the  town,  and  at  the 
same  time  choose  by  ballot  such  number  of  judicious  free- 
holders as  is  prescribed  by  law,  to  serve  as  jurors  in  the  su- 
perior and  county  courts  the  year  ensuing.       No   person 
can  be  a  juror  who  has  not  a  freehold  estate  set  in  the  list 
at  nine  dollars  or  more  (c). 

4.  It  is  the  duty  of  every  Constable,  on  receiving  a  war- 
rant from  the  clerk  of  the  superior  or  county  court,  author- 
ising and  commanding  him  so  to  do,  to  summon  such  number 
of  the  freeholders  chosen  for  that  purpose,  as  is  specified 
in  such  warrant,  to  attend   and  serve  as  jurors  at  any  ses- 
sion of  such  court.      He  must  proceed  to  the  office  of  the 
town  clerk,  and  in  the  presence  of  such  clerk,  or  if  he  is 
absent,  in  that  of  one  of  the  select-men,  or  a  justice  of  the 
peace,  draw  out  of  a  box  containing  the  names  of  the  seve- 
ral jurors  chosen  for  such  town,  written  on  separate  pieces 
of  paper,  the  number  of  jurors  he  is  directed  to   summon, 
without  seeing  the  names  he  draws  before  he  draws  them, 
;ind  thereupon  he  must  summon  the  persons  whose  names 
are  so  drawn,  to  attend  and  serve  as  jurors      If  any  of  the 
persons  whose  names  are  drawn,  are  dead,   he  must  draw 
others  in  their  room,  aad  summon  them.       He  must  return 
his  warrant  to  the  clerk  of  the  couft,  with  his  endorsement, 
certifying  whom  he  has  summoned,  on  pain  of  forfeiting  to 
the  treasury  of  the  county,  a  sum  not  exceeding  five  dollars, 
at  the  discretion  of  of  the  judges  of  the  court,  unless  he 
shall  make  reasonable  excuse  to  the  acceptance  of  such 
court  (rf). 

(n)  Stat.  45! .     (6)  Stat.  185.     (r)  Stat.  45.     (d)  Stat.  45.  • 


Form  of  Return  on  a  Warrant  of  the  Clerk. 

Fl  count}' ,  ss.  H      day  of     A.  U.      then  by  virtue 

hereof  I  proceeded  to  the  office  of  the  town  clerk  of  the  town 
of  H  and  in  the  presence  of  A.  B.  clerk  of  said  town 
of  H  ,  [or,  he  being  absent,  in  the  presence  of  C.  D. 
one  of  the  select-men  of  said  town,  or  justice  of  the  peace] 
and  drew  out  of  the  box  containing  the  names  of  the  free- 
holders chosen  to  serve  as  jurors  for  said  town,  the  names 
of  the  following  freeholders,  not  having  seen  the  same  be- 
fore they  were  drawn,  viz.  F.  F.,  G.  H.,  L.  M.,  and  O.  P.  ; 
whereupon  I  summoned  the  said  persons,  so  drawn  from 
said  box,  to  attend  on  the  day  of  the  court  then 
to  be  in  session  at  H  ,  in  and  for  the  county  of  H 
to  serve  as  jurors  in  said  court. 

5th.  Constables  are  authorized  to  sell  creatures  im- 
pounded, in  certain  cases,  when  no  owner  appears.  When 
creatures  are  impounded,  the  owner  of  which  is  unknown, 
it  is  the  duty  of  the  person  impounding  them  to  advertise 
them,  by  setting  upon  the  sign-post,  in  the  town  where  they 
are  impounded,  and  in  two  adjoining  towns,  a  description 
of  such  creatures,  with  their  natural  and  artificial  marks, 
and  the  place  where  taken  ;  and  if  a  newspaper  i«  printed 
in  the  same  or  an  adjoining  town,  by  publishing  such  de- 
scription in  such  newspaper,  and  if  no  owner  shall  appear 
within  five  days  after  such  creatures  have  been  so  adver- 
tised, the  pound-keeper  may  remove  them  from  the  pound 
and  procure  them  kept  elsewhere,  in  such  safe,  and  con- 
venient manner,  as  he  may  think  proper,  without  being 
liable  for  their  safe  keeping  ;  and  if  no  owner  shall  appear 
within  sixty  days  thereafter,  the  impounder  shall  call  two 
fence-viewers  to  view  the  fence  of  the  enclosure  where 
the  creatures  were  taken,  and  if  they  adjudge  it  not  to  be 
a  lawful  fence,  then  such  creatures  shall  be  released,  and 
the  person  impounding  them  shall  pay  the  expense  ;  but  if 
such  fence  is  adjudged  to  be  sufficient  and  lawful,  the  fence- 
viewers  shall  estimate  the  damage  done  in  such  enclosure 
by  such  creatures,  and  either  constable  of  the  town  may 
sell  so  may  of  them  as  will  be  sufficient  to  pay  the  dama- 
ges, the  poundage,  and  the  reasonable  expense  of  support- 
ing and  advertising  them.  TheViatural  and  artificial  marks 
of  the  creatures  so  sold  shall  be  entered  in  the  town  clerk's 
office,  with  an  account  of  the  charges,  and  the  price  for 


201 

which  they  were  sold,  and  the  overplus,  if  any,  after  the 
town  clerk  shall  be  paid  for  the  entry,  shall  be  delivered 
to  the  town  treasurer,  to  be  kept  for  the  owner,  if  he  ap- 
pears within  one  year,  otherwise  it  shall  belong  to  the 
town  (/i). 

6th.  In  cases  of  sudden  and  untimely  death,  or  where  a 
person  is  found  dead,  the  manner  of  whose  death  is  un- 
known, if  there  be  no  justice  of  the  peace  in  the  town,  any 
constable  thereof,  may,  of  his  own  authority,  summon  a 
jury  of  twelve  judicious  men,  to  inquire  of  the  cause  and 
manner  of  the  death  of  such  person,  and  present  a  verdict 
thereof  to  any  justice  of  the  peace  of  the  county.  Such 
constable  may  administer  an  oath  to  the  jury  and  direct 
their  proceeding  in  the  same  manner  as  a  justice  of  thf 
peace,  when  an  inquest  is  instituted  by  his  authority. 


CHAPTER  111. 

Of  their  Ferrer  and  Duty  In  Serving  Civil  Process. 

The  most  important  branch  of  the  authority  and  duties 
of  Constables  remains  to  be  considered,  and  co  sist  of  the 
execution  of  process  in  civil  and  criminal  cases.  Con- 
stables, as  we  have  already  stated,  have  the  same  authori- 
ty for  the  service  of  process  within  their  towns,  as  sheriffs 
have  within  their  counties.  We  will  first  examine  the 
»ervice  of  civil  process,  commencing  with  original  writs. 
I.  Of  the  Service  rf  Summojis. 

This  is  a  form  of  process,  the  most  simple  imaginable, 
and  the  duty  of  the  officer  is  equally  plain  and  simple.  A 
summon  may  be  legally  served,  either  by  reading  the 
same  to  the  defendant  named  therein,  or  by  leaving  a  true 
copy  thereof,  with  an  indorsement  or  certificate  to  that 
effect  thereon  made  and  attested,  with  the  defendant  or  at 
hi«  usual  place  of  abode.  Wherp  there  are  two  or  more 
defendants  named  in  the  writ,  whether  they  are  described 
as  partners  having  a  company  name  or  not,  it  must  be 
read  or  a  copy  left  with  each  of  them,  where  they  are  all 

(h)  St.  378. 


202 

in  this  state,  and  the  indorsement  thereon  made  accord- 
ingly- 
All  writs  returnable  to  the  supreme  court  of  errors,  the 
superiour  court,  the  county  courts,  and  the  city  courts, 
where  the  defendant  resides  out  of  the  limits  of  the  city, 
must  be  served  at  least  twelve  days  before  the  setting  of 
the  court,  the  day  of  service  being  included,  and  the  day 
of  the  court  being  excluded  ;  and  all  writs  returnable  be- 
fore justices  of  the  peace  or  the  city  courts,  where  the 
defendant  lives  within  the  city,  must  be  served  at  least  six 
days  inclusive  before  the  setting  of  the  court  (*).  In  ac- 
tions against  a  sheriff  or  constable  for  any  default  in  his  of- 
fice, or  on  a  receipt  for  an  execution,  the  writ  must  be  serv- 
ed at  least  fourteen  days  inclusive  as  aforesaid,  before  the 
day  of  the  court.  When  any  community  or  corporation  is 
sued  before  a  justice  of  the  peace,  twelve  days  notice  must 
be  given,  the  same  as  other  writs  returnable  to  the  superi- 
or or  county  courts.  In  actions  against  towns,  societies, 
or  other  communities,  the  service  is  to  be  made  by  leaving 
a  true  and  attested  copy  of  the.  w^rit  with  the  clerk  of  the 
same,  or  with  either  of  the  select-men  of  the  town,  or 
either  of  the  committee  of  societies  ;  and  when  other  cor- 
porations are  sued  service  is  to  be  made  by  leaving  a  like 
copy  with  the  clerk,  secretary,  or  cashier  of  the  same  ; 
and  when  any  community  or  corporation  incorporated  by 
authority  of  this  st^te,  transact  their  business  in  the  same, 
and  have  no  clerk,  secretary,  cashier,  or  other  officer, 
residing  therein,  the  writ  is  to  be  served  by  leaving  a  copy 
with  the  agent  of  such  corpoiwtion,  residing  in  the  state, 
or  if  there  be  none,  at  the  house  or  place  where  such 
corporation  transact  their  business  and  exercise  their  cor- 
porate powers  (Jk). 

In  actions  on  joint  contract  or  securities  where  all  the 
defendants  are  not  inhabitants  of  the  state,  the  service  of 
the  process  on  such  of  them  as  are,  is  sufficient  to  main- 
tain the  suit  against  all,  and  if  any  are  aggrieved  by  the 
judgment,  they  may  be  relieved  by  a  new  tri;d. 

Where  the  defendant  on  being  informed  of  the  writ  ac- 
cepts service,  it  is  not  necessary  to  read  it,  but  the  en- 
dorsement must  be  the  same  as  though  it  was  actually  read 

(i)  St.  36.  (fc)St.  131. 


203 

;o  him.  The  copy  left  with  the  defendant  must  be  cor- 
rect, and  if  there  is  any  essential  variance  from  the  original 
it  will  abate.  It  is  difficult  to  prescribe  any  precise  rule 
as  to  what  shall  be  deemed  a  material  variance  ;  but  no 
verbal  variance  between  the  copy  and  the  original,  will 
render  the  service  bad,  and  where  the  court,  the  time  of 
the  session  thereof,  and  the  cause  of  action  can  b^yightly 
understood,  from  the  copy,  the  service  will  be  good,  not- 
withstanding any  errors  therein,  which  do  not  effect  the 
merits  of  the  cause  (/).  If  the  copy  was  defective,  yet  if 
'be  writ  was  also  read  to  the  defendant,  the  service  will  be 
good,  and  the  officer  will  be  permitted  to  come  into  court 
and  amend  or  alter  his  endorsement,  and  certify  that  ser- 
vice was  made  by  reading. 

A  writ  may  be  served  on  the  last  day  of  service  at  any  time 
before  twelve  o'clock  at  night:  no  writ  can  be  served  between 
the  setting  of  the  sun  on  Saturday  and  twelve  o'clock  at 
night  on  Sunday  evening.  The  defendant  can  acknowledge 
the  service  of  a  writ  without  the  legal  notice,  before,  or 
during  the  session  of  the  court,  the  same  being  entered  on 
the  back  thereof  and  subscribed  by  him  ;  but  one  defend- 
ant, where  there  are  two  or  more,  cannot  acknowledge 
for  his  co-defendants,  although  they  are  partners  and  he 
makes  use  of  the  company  name  ;  neither  can  an  attorney 
make  such  acknowledgement  unless  specially  authorized 
for  that  purpose. 

Where  there  are  two  or  more  defendants  in  a  writ,  part 
belonging  to  one  town  and  part  in  another,  it  may  be  ser- 
ved by  any  constable  on  such  of  the  defendants  as  reside 
within  the  same,  and  then  deliver  to  a  constable  in  the 
other  town,  and  served  on  those  of  the  defendants  residing 
therein.  But  the  writ  must  be  directed  to  any  constable 
of  both,  not  to  either  constable  of  one  such  town  or  the 
other  ;  and  each  officer  must  make  an  endorsement  there- 
on of  his  doings,  and  one  of  them  return  the  writ.  When 
a  writ  is  lawfully  directed  to  an  indifferent  person  he  must 
serve  it  in  the  same  manner  as  a  proper  officer,  and  make 
the  like  return. 

2.  Of  the  Service  of  Attachments. 

It  is  the  duty  of  an  officer  serving  an  attachment,   to 

(/)  Swf.  Dig.  611. 


204 

make  diligent  inquiry  and  search  within  his  precincts,  loi 
goods  and  chattels  of  the  defendant,  and  if  any  can  be  found, 
or  are  tendered  to  him  by  the  defendant,  to  attach  the 
same  to  the  amount  specified  in  the  writ,  and  take  the  same 
into  his  possession.  If  with  due  diligence  personal  estate 
could  have  been  found  and  attached,  and  the  officer  neg- 
lects to  do  it,  but  attaches  the  body  of  the  defendant,  and 
afterwards  such  estate  is  disposed  of,  or  attached  by  some 
other  creditor,  and  the  execution  issued  upon  the  judg- 
ment recovered  in  such  action,  is  returned  non  est  inven- 
tus,  or  the  body  taken  thereon  and  discharged  from  gaol 
by  taking  the  poor  debtor's  oath,  the  officer  will  be  liable 
to  pay  the  debt  and  all  the  costs.  But  an  officer  is  not 
bound  nor  can  he  safely  take  personal  estate  where  there 
is  not  sufficient  to  satisfy  the  debt,  unless  authorized  and 
directed  by  the  creditor,  and  would,  without  such  direction, 
become  personally  liable  for  the  deficiency  (in).  But  if  he 
takes  the  property  in  pursuance  of  the  direction  of  the 
creditor,  he  will  be  justified,  whether  it  is  sufficient  or  not. 
He  cannot  take  personal  estate  for  part  of  the  debt,  and 
then  take  the  body  of  the  defendant,  and  if  he  should  so 
do,  it  would  be  false  imprisonment.  But  where  the  body 
cannot  be  found,  it  is  the  duty  of  the  officer  to  attach  per- 
sonal property,  if  there  is  not  sufficient  to  satisfy  the 
judgment  that  may  be  recovered  ;  he  must  in  such  cases 
take  all  the  estate  he  can  find  ;  if  he  neglects  to  do  it,  he 
becomes  personally  liable  (n).  Where  there  is  ground  for 
doubt  as  to  the  sufficiency  of  personal  property , or  whether  it 
belongs  to  the  defendant,  it  would  be  advisable  for  the  offi- 
cer to  call  on  the  creditor  to  turn  the  property  out  to  him 
to  be  attached,  so  that  if  it  proves  insufficient,  or  not  to  be 
the  property  of  the  defendant,  he  would  be  indemnified, 
although  the  body  might  have  been  taken,  and  after  judg- 
ment, cannot  be  found  on  the  execution  ;  for  whatever  the 
officer  may  do  by  the  special  direction  of  the  creditor,  he 
will  be  safe  as  respects  any  liability  to  him,  &  the  creditor  will 
also  be  holden  to  indemnify  him  against  any  claims  from  a 
third  person's  being  the  owner  of  any  property  taken  by  his 
direction.  But  if  the  plaintiff  refuses  to  turn  out  the  prop- 
erty or  give  any  direction,  it  would  seem  that  the  officer 

(m)  4th  Day  438        (n)  Swif.  Dig.  590. 


205 

must  decide,  at  his  peril,  whether  the  property  is  suffi- 
cient,  or  belongs  to  the  defendant,  and  that  if  he  mis-judges 
and  takes  insufficient  estate  or  property  not  belonging  to 
the  defendant,  when  the  body  might  have  been  taken,  and 
cannot  be  found  on  the  execution,  that  he  will  be  person- 
ally liable  in  the  one  case  to  make  up  the  deficiency,  and 
in  the  other,  for  the  whole  debt.  Where  an  attachment 
issues  against  two  or  more  defendants,  who  are  partners, 
for  a  partnership  debt,  not  the  company  property  only,  but 
the  separate  property  of  each  defendant  is  liable  to  be  at- 
tached, to  satisfy  the  judgment,  and  if  there  was  either  part- 
nership property  or  individual  estate,  of  any  one  of  the  de- 
fendants, which  could  have  been  taken,  and  the  officer 
neglects  to  do  it,  he  makes  himself  liable  in  case  the  debt 
is  lost.  But  in  a  special  partnership,  formed  in  pursuance 
of  the  late  statute,  the  individual  property  of  the  special 
partners  is  not  liable  to  be  taken  on  a  partnership  debt ; 
the  company  property  or  the  individual  estate  of  the  gen- 
eral partners  of  such  company  must  be  attached,  if  suffi- 
cient can  be  found.  Where  an  attachment  is  issued  against 
a  person  for  an  individual  debt,  who  is  a  member  of  a  part- 
nership, the  partnership  property  cannot  be  attached  and 
held  to  be  sold  on  the  execution,  as  in  other  cases,  but  the 
officer  must  attach  the  interest  of  the  defendant,  as  one  of 
the  partners,  in  the  partnership  property,  subject  to  the 
debts  of  the  partnership,  and  a  settlement  of  the  partner- 
ship account  between  the  members  thereof  (o).  It  would 
seem  that  the  whole  visible  partnership  property  ought  to 
be  attached,  and  such  attachment  will  be  a  lien  on  the  de- 
fendant's interest  in  the  partnership  on  a  final  adjustment 
of  the  company  concerns.  If  a  second  creditor  attaches 
the  partnership  interest  of  the  defendant,  he  will  have  the 
same  lien  thereon  subject  to  the  settlement  of  the  part- 
nership accounts,  and  the  debt  of  the  first  attaching  cred- 
itor. 

The  stock  or  shares  of  any  person  in  any  bank,  insur- 
ance company,  turnpike  company,  or  other  corporation, 
may  be  attached,  by  leaving  a  true  and  attested  copy  of 
the  writ  of  attachment,  with  an  indorsement  thereon,  that 
such  shares  or  stock  have  been  attached,  as  in  other  cases, 

(o)  2  Con.  Rep.  514. 
18 


,-Ot; 

with  the  defendant,  or  at  his  usual  place  of  abode,  if  with- 
in this  State,  and  a  like  copy  with  the  cashier  of  such  bank, 
or  the  secretary  or  clerk  of  such  company,  or  corporation  ; 
and  s  He'll  attachment  will  hold  not  only  such  shares  or  stock, 
but  all  the  interest,  rents,  or  profits,  which  may  have  ac- 
crued thereon,  or  may  accrue  previously  to  the  sale  of  the 
same  on  execution  (p). 

When  visible  personal  property  is  attached  it  is  the  duty 
of  the  officer  to  take  it  into  his  possession,  and  to  remove 
it  out  of  the  possession  of  the  defendant  ;  and  if  he  suffer 
it  to  remain  in  the  possession  of  the  latter,  it  may  be  attach- 
ed and  held  by  other  creditors,  and  the  officer  become  per- 
sonally responsible.  He  may,  however,  take  a  receipt  for 
the  property,  and  let  it  remain  in  the  defendant's  posses- 
sion ;  the  usual  mode  is  for  the  defendant,  with  some  other  re- 
sponsible person,  to  execute  a  receipt,  acknowledging  their 
having  received  the  property  of  the  officer,  and  promising 
to  re-deliver  the  same  to  him  on  demand,  at  any  time  with- 
in sixty  days  after  the  judgmept  which  may  be  recovered 
in  the  suit.  The  attachment  in  such  case 'has  no  effect  to 
prevent  the  same  property's  being  attached  by  any  other 
creditor,  or  being  sold  to  a  bonajide  purchaser,  unless  the 
person  who  becomes  receipt's-man  for  the  defendant  takes 
the  same  into  his  possession.  If  the  property  is  not  re- 
delivered  the  officer  must  look  to  the  receipt,  upon  which 
he  can  maintain  a  suit  when  he  has  been  obliged  to  satisfy 
the  judgment  recovered  in  the  action,  or  is  liable  so  to  do  ; 
or  is  accountable  for  the  property  to  the  debtor.  The 
property  whether  "in  the  hands  of  the  officer  or  the  re- 
ceipt's-man, is  not  holden  to  respond  the  judgment,  but 
sixty  days  after  the  same  is  rendered.  And  if  the  plaintiff 
neglects  to  take  out  execution  and  make  demand  of  the 
property  within  that  period,  the  officer  and  the  receipt's- 
man,  where  a  receipt  is  taken  and  he  has  delivered  the 
property  over  to  the  debtor,  will  be  discharged  and  the 
property  realized.  And  if  the  creditor  lets  the  sixty  days 
expire  without  taking  out  execution  or  making  any  demand 
on  the  officer  for  the  property,  the  latter  being  himself  dis- 
charged from  his  accountability  for  the  property,  cannot 
maintain  an  action  against  the  receipt's-man  for  not  deliv- 

(p)  St.  36. 


t-ring  the  property  on  a  subsequent  demand,  if  it  iuis  bcc.u 
.lelivered  over  to  the  debtor  (p).  It"  the  execution  issued 
upon  the  judgment  recovered  in  the  action,  is  otherwise 
•^atisfied,  the  officer  may  maintain  an  action  on  the  receipt 
on  the  ground  of  his  liability  to  the  debtor  (</)  ;  and  when 
judgment  is  not  rendered  for  the  plaintiff,  the  officer  may 
recover  against  the  receipt's-man  if  he  is  accountable  for 
the  property  to  the  debtor.  In  an  action  by  an  officer 
against  a  receipt's-man  it  is  a  good  defence  for  the  defend- 
ant to  shew  that  the  property  did  not  belong  to  the  debt- 
or (r).  Where  property  has  been  attached  by  one  creditor 
and  taken  into  possession  by  the  officer,  or  by  the  receipt V 
ma-i,  it  may,  notwithstanding,  be  attached  by  another  cred- 
itor, although  the  possession  cannot  be  taken  from  the  of- 
ficer tirs t  attaching  it,  or  his  receipt's-man  ;  yet  it  will  bt 
liable  in  their  hands  to  satisfy  the  judgment  that  may  he 
i -red  on  the  second  suit  ;  and  after  the  first  has  been 
-atistied  out  of  the  estate,  the  residue  is  liable  to  be  taken 
-  ild  on  the  second  execution  (i).  It  is  however 
.ost  convenient  in  such  cases,  to  deliver  the  subse- 
altachmente  to  the  same  officer.  A  contrary  prin- 
ciple has  been  adopted  in  Massachusetts,  it  having  been 
decided  there  that  property  which  has  been  attached  and 
is  in  the  hand?  of  an  officer  cannot  be  attached  by  another 
creditor,  because  the  second  officer  cannot  obtain  actual 
possession  of  it. 

If  for  want  of  goods  of  the  debtor  his  body  is  attached, 
and  afterwards,  before  the  expiration  of  the  time  of  serv- 
ing the  writ,  goods  are  discovered,  the  creditor  may  di- 
rect the  officer  to  release  the  body  and  attach  the  goods, 
and  if  they  are  not  within  the  precincts  of  such  officer 
the  plaintiff  may  take  the  attachment  out  of  his  hands  and 
deliver  it  to  another  officer  to  attach  such  estate  (f).  In 
such  c/.ises  it  would  be  most  proper  and  safe  for  the  officer 
to  make  an  endorsement  of  his  having  attached  the  body 
for  the  want  of  goods,  and  afterwards  discovering  personal 
property,  or  the  same  being  tendered  to  him,  that  he  re- 
leased  the  body  and  attached  the  estate.  If  after  the  body 
of  the  defendant  has  been  taken,  goods  sufficient  to  satisfy 

(p)Kir.  40.    (7)  I  Root  381.  (r)3Con.  Rep.       1 4  M.  T.  R.  224. 

(*)  2  Con.  Rep.  203.         (t)  I  Con.  Rep.  255. 


208 

the  debt  are  tendered,  the  officer  is  bound  to  take  them 
and  release  the  body.  When  the  defendant  requests  the 
officer  to  attend  him  to  the  place  where  bis  personal  prop- 
erty is,  it  is  his  duty  to  go,  and  if  he  refuses  and  takes  and 
imprisons  the  body  he  makes  himself  liable.  When 
personal  property  is  taken,  although  insufficient  and  the 
plaintiff  directs  the  officer  to  attach  the  body,  he  will  be 
liable  for  false  imprisonment  (u). 

Wherever  personal  property  is  attached,  a  copy  of  the 
writ  with  an  endorsement  thereon,  describing  the  property 
attached,  must  be  left  with  the  defendant,  or  at  his  usual 
place  of  abode,  if  within  this  state.  If  the  defendant  is 
not  an  inhabitant  or  resident  of  this  state,  and  has  property 
within  the  same  which  is  attached,  a  copy  must  be  left  with 
the  agent  or  attorney  of  the  defendant,  if  he  has  any  in 
this  state.  The  attachment  of  visible  property  within  this 
state,  where  the  defendant  does  not  belong  to  the  state, 
gives  our  courts  jurisdiction,  and  is  sufficient  service. 

Where  no  personal  estate  can  be  found,  the  creditor 
may  direct  the  officer  to  attach  the  real  estate  of  the  de- 
fendant if  he  chooses  ;  but  unless  so  directed,  it  is  the  du- 
ty of  the  officer  to  take  the  body.  The  defendant  cannot 
tender  real  estate  to  avoid  the  attachment  of  his  body. 
The  plaintiff  has  his  option  to  attach  the  land  or  take  the 
body  of  the  defendant,  or  he  may  direct  the  officer  to  take 
part  personal  estate  and  part  real,  but  the  officer  cannot 
be  justified  in  doing  this  unless  directed.  Where  land  is 
taken  the  officer  must  enter  on  to  the  same,  to  levy  his 
attachment,  and  without  this  the  attachment  would  not  hold. 
When  real  estate  is  attached,  a  copy  of  the  attachment, 
with  an  attested  endorsement  made  thereon,  containing;  a 
description  of  the  land  attached,  must  be  left  with  the  de- 
fendant or  at  his  usual  place  of  abode,  if  he  belongs  to 
this  state  ;  but  if  he  is  not  a  resident  of  this  state,  a  copy 
is  to  be  left  with  his  agent  or  attorney  within  this  state  ; 
and  in  all  cases  a  like  copy  must  be  left  at  the  office  of  the 
town  clerk  of  the  town  where  the  land  lies,  which  copies 
must  be  left  within  seven  days  after  the  land  i*  attached, 
and  before  the  time  expires  for  the  service  of  the  writ. 
Where  the  defendant  does  not  belong  to  this  state  and  ha* 

(w)Swf.  Dig.  591. 


uo  agent  or  attorney  within  the  state,  a  copy  must  be  left 
with  him  who  has  the  charge  or  possession  of  the  estate 
attached  (TO). 

Personal  property  is  held  by  the  attachment  sixty  days 
after  final  judgment  is  recovered  in  the  action,  to  respond 
suchjudgment;  and  real  estate  attached,  is  held  four  months 
after  final  judgment  shall  be  obtained  :  and  unless  execution 
is  levied  on  the  same  within  these  periods,  the  property  is 
discharged  from  the  attachment,  unless  the  property  attach- 
ed was  incumbered  by  a  prior  attachment,  in  which  case 
the  creditor  has  the  same  period  to  levy  his  execution,  af- 
ter such  prior  incumbrance  is  removed  If  the  execution 
is  levied  on  goods  within  sixty  days  after  the  judgment,  it 
will  be  sufficient,  although  they  are  not  sold  until  after  that 
period  ;  but  in  case  of  real  estate,  the  execution  must  be 
levied,  the  land  appraised,  and  the  whole  proceedings  com- 
pleted and  recorded,  or  left  for  record  within  the  four 
months  ;  and  where  there  are  subsequent  attachments,  if 
the  execution  on  the  prior  judgment  is  levied  within  four 
months,  but  the  proceedings  are  not  completed,  and 
recorded  within  that  time,  a  title  will  not  be  obtained, 
and  the  land  may  be  held  by  the  subsequent  attaching 
creditor. 

When  no  goods  or  chattels  can  be  found,  and  the  creditor 
does  not  direct  the  officer  to  levy  on  real  estate,  he  must 
take  the  bpdy  of  the  defendant,  if  he  can  be  found  within  his 
precincts.  If  there  are  several  defendants,  they  must  all 
be  arrested.  To  constitute  an  arrest,  there  must  regular- 
ly be  an  actual  touching  of  the  body  ;  yet  if  the  officer  in- 
forms the  defendant  that  he  has  an  attachment  against  him, 
and  says  to  him  "you  are  my  prisoner,"  and  he  submits 
to  his  authority,  it  will  be  an  arrest ;  but  words  alone  are 
not  vsufficient  to  constitute  an  arrest,  unless  the  person  sub- 
mits, and  recognises  the  authority  of  the  officer  over  him, 
A  sheriff  said  to  a  person  against  whom  he  had  a  writ,  meet- 
ing him  on  horseback,  "you  are  my  prisoner,"  upon 
which  he  turned  back  and  submitted.  This  was  held  a  good 
arrest,  although  he  did  not  touch  him  ;  but  if  he  had  fled, 
it  would  have  been  no  arrest  (a;).  Where  a  person  wa«  in 
a  room,  and  an  officer  having  a  writ  against  him,  said  to  him 

(w]  Stat.  37.          (*)  Salk.  79. 
18* 


210 

"  you  are  my  prisoner,"  and  he  submitted,  and  the  officer 
had  him  under  his  command  and  in  his  power,  it  was  held  a 
good  arrest,  although  he  did  not  actually  touch  him  (A).  It 
is  however,  the  safest  and  most  advisable,  in  all  cases,  for 
the  officer  to  touch  the  person,  as  this  furnishes  conclusive 
and  indisputable  evidence  of  the  arrest.  If  an  officer,  ha- 
ing  a  writ  against  a  person,  says  to  him,  you  are  my  prison- 
er, or  that  he  arrests  him,  yet  the  person  does  not  submit, 
but  flees,  or  having  a  weapon  in  hi«  hand,  keeps  the  officer 
from  touching  him,  and  retreats  into  his  house,  this  would 
be  no  arrest,  and  the  officer  could  not  break  the  house  to 
take  him.  When  an  officer  calls  assistance,  any  person  as- 
sisting him  may  make  an  arrest  as  well  a«  the  officer,  and 
their  touching  the  person  to  arrest  him  will  be  sufficient  (i). 
It  is  an  ancient  principle  of  the  common  law,  that  a  man's 
house  is  his  castle,  and  that  it  cannot  be  broken,  nor  be  en- 
tered without  leave,  unless  a  door  be  open,  to  execute  civ- 
il process,  whether  to  arrest  his  body  or  attach  proper- 
ty (fc).  This  legal  inviolability,  however,  is  confined  to 
the  outer  doors,  and  after  an  officer  has  legally  entered  a 
house,  he  may,  first  making  demand  of  entrance,  break 
open  any  inner  door,  or  any  trunk  or  chest,  having  demand- 
ed them  to  be  opened,  to  discover  goods  to  attach.  Con- 
trary to  the  decisions  in  England,  it  has  been  decided  by 
the  superior  court  in  this  State,  that  the  door  of  the  apart- 
ment of  each  separate  occupant  in  the  same  building  is  the 
outer  door  as  to  such  occupant  and  apartment,  and  cannot 
be  broken  open  (m^).  This  principle  of  sanctuary,  or  pro- 
tection from  arrest,  is  confined  to  dwelling-houses  and  their 
apartments;  barns,  shops,  stores,  manufactories,  and  all 
other  buildings,  unless  so  connected  with  the  house  as  to 
form  an  apartment  thereto,  may  be  broken  open  to  arrest 
the  body  or  attach  property.  Neither  does  a  dwelling- 
house  afford  this  protection,  except  to  the  occupant  and  the 
members  of  his  family.  Not  only  a  man's  children  and  do- 
mestic servants,  but  regular  boarders,  and  those  who  have 
made  the  house  their  home,  are  considered  as  members  of 
the  family,  and  entitled  to  protection.  But  a  stranger,  or 
a  mere  visitor,  cannot  claim  protection  ;  neither  can  the. 

(h)  Bull,  N.  P.  62.       (t)  Swift's  Dig.  592.     (fc)  5  Co.  92. 
(m)  Swift's  Dig.  593. 


goods  of  one  person  be  secreted  and  protected  in  the  house 
of  another  ;  and  after  first  demanding  entrance,  and  stating 
the  object  of  it,  an  officer  can  be  justified  in  breaking  down 
the  door,  if  necessary,  to  arrest  a  stranger,  or  to  attach  the 
goods  of  any  other  person,  except  members  of  the  family, 
secreted  or  remaining  in  the  house.  Where  a  person  has 
been  legally  arrested,  and  escapes  into  his  house,  the  offi- 
cer may  break  open  the  doors  to  retake  him.  The  bail,  or 
an  officer  or  other  person  having  authority  from  him,  after 
demand  of  entrance,  may  break  open  the  door  to  take  his 
principal. 

To  constitute  a  breaking,  it  is  not  necessary  that  there 
should  be  actual  violence  ;  if  the  door  is  closed  and 
latched,  although  not  made  fast  by  locks  or  bars,  and  an  of- 
ficer opens  it  without  consent,  the  entry  is  unlawful,  and  an 
arrest  void.  If  an  officer  rap  on  the  door,  and  the  owner 
opens  it  to  see  who  is  there,  and  he  forcibly  rush  in,  with  a 
weapon,  and  make  an  arrest,  the  entry  and  arrest  are  un- 
lawful. If  an  officer  enters  by  stratagem  and  fraud,  it  will 
be  illegal.  It  has  been  decided  by  the  superior  court,  that 
where  another  person  in  connection  with  the  officer,  pro- 
cured admission,  by  holding  out  false  pretences,  and  dis- 
guising his  object,  and  who,  when  the  officer  came  up  and 
rapped,  opened  the  door,  whereby  he  rushed  in,  that  the  en- 
try was  unlawful,  and  all  concerned,  trespassers.  An  officer 
who  entered  a  house  down  the  chimney,  has  been  adjudged 
by  the  superior  court  to  be  a  trespasser,  and  subjected  to 
heavy  damages.  If  an  officer  raps  at  the  door,  and  the  usu- 
al assent  to  enter  is  given  by  the  owner,  or  any  member  of 
the  family,  this  is  sufficient  consent  for  him  to  open  the 
door  and  enter. 

It  has  been  considered  that  if  a  sheriff  make  an  unlawful 
entry,  or  break  a  house,  to  execute  a  writ,  he  may  be  sued 
as  a  trespasser  ;  but  that  the  service  of  the  writ,  notwith- 
standing, will  be  good  (a).  This  principle  would  seem  al- 
most entirely  to  render  the  protection  nugatory.  A  differ- 
ent doctrine  has  been  adopted  in  this  state  ;  it  has  been  de- 
cided by  the  superior  court,  that  an  officer,  for  taking  goods 
in  pursuance  of  an  unlawful  entry,  was  liable  in  trespass 
for  the  yalue  of  the  goods  (6).  A  person  previously  ar- 

(a)  5  Co.  93.        (b)  Swift's  Dig.  593. 


212 

rested,  and  who  hath  escaped,  may  be  retaken  on  Sunday, 
or  on  Saturday  or  Sunday  nisht,  within  the  period  in  which 
civil  process  may  not  be  executed,  and  hail  make,  take  his 
principal  and  confine  him  until  the  next  day,  to  surrender 
him. 

When  a  Constable  or  other  officer  takes  the  body  of  a 
defendant  on  an  attachment,  it  is  his  duty  in  all  cases  to 
take  sufficient  bail  if  offered  by  the  person  arrested,  and 
if  he  neglects  or  refuses  to  do  it,  and  commits  the  body  to 
gaol,  it  will  be  false  imprisonment.  He  is  not,  however, 
obliged  to  take  bail,  unless  it  is  sufficient,  which  must  be 
one  or  more  substantial  inhabitants  of  this  State,  of  sufficient 
ability  to  respond  the  judgment  that  may  be  recovered  in 
the  action.  The  bail  must  become  bound  to  the  officer  in 
a  sufficient  sum,  conditioned  that  the  person  arrested  ap- 
pear before  the  court  to  which  the  writ  is  returnable,  and 
thereupon  the  person  must  be  discharged  from  such  arrest ; 
and  if  he  is  detained  in  custody  after  bail  has  heen  given,  it 
is  false  imprisonment  (c). 

It  is  the  duty  of  an  officer  who  has  taken  bail,  to  assign 
the  bail  bond  to  the  plaintiff  on  his  request  ;  and  no  action 
can  be  maintained  against  him,  unless  he  refuse  to  assign 
the  bail-bond,  or  has  taken  insufficient  bail  (rf). 

If  the  person  arrested  neglects,  refuses,  or  is  unable  to 
procure  bail,  he  must  be  committed  to  gaol ;  for  which  pur- 
pose the  officer  must  apply  to  any  justice  of  the  peace  of 
the  county,  and  obtain  a  mittimus,  stating  the  cause  of  his 
commitment,  by  authority  of  which,  he  is  to  be  kept  in  pri- 
son until  five  days  after  the  final  judgment  is  rendered,  and 
if  execution  is  not  levied  on  him  within  that  time,  he  is  dis- 
charged. A  person  committed  to  gaol  on  mesne  process  or 
attachment,  is  entitled  to  the  privilege  of  bail,  at  any  time 
previous  to  the  session  of  the  court,  and  it  is'the  duty  of 
the  sheriff,  having  charge  ofthe  gaol,  to  take  a  bail  ifoffer- 
ed.  and  sufficient,  and  discharge  the  prisoner,  and  if  he  re- 
fuses or  neglects  to  do  it,  the  detention  is  false  imprison- 
ment (e). 

On  an  attachment  against  husband  and  wife,  both  must  be 
arrested  ;  but  the  wife  may  be  discharged  until  the  husband 
procure  bail  for  both.  A  minor,  also,  where  he  is  lawful- 

(c)  Statutes,  62.     (d)  ib.  63.     (e)  ib.  62- 


213 

ly  sued  as  for  torts  or  necessaries,  is  liable  to  arrest  the 
same  as  any  other  person. 

Senators  and  representatives  of  the  general  assembly,  are 
by  the  constitution  privileged  from  arrest  on  civil  process, 
during  the  session  thereof,  and  for  four  days  before  and  af- 
ter any  session.  At  all  elections  of  officers  of  the  State,  or 
members  of  the  general  assembly,  the  electors  are  privileg- 
ed from  arrest  during  their  attendance  upon,  and  going  to, 
and  returning  from  the  same,  on  any  civil  process  (/t).  No 
member  of  congress,  whether  belonging  to  this  state  or  any 
other,  can  be  arrested,  except  for  treason,  felony,  or  breach 
of  the  peace,  whilst  going  to  or  returning  from  any  session 
thereof.  Jurors,  parties,  and  witnesses,  attending  upon 
any  court,  are  privileged  from  arrest  during  their  attend- 
ance, and  going  thereto,  and  if  arrested,  may  be  discharged, 
by  motion  to  such  court  ;  but  the  officer  making  such  ar- 
rest, is  not  liable  for  false  imprisonment  ;  for  the  privilege 
is  considered  as  pertaining  to  the  court  and  not  to  the  per- 
son in  attendance  ;  and  the  court  may  at  their  discretion 
punish  '":.e  officer  or  party  procuring  the  arrest,  for  aeon- 
tern*  I  (i).  But  the  arrest  of  a  member  of  congress,  ot 
tv.e  legislature  of  this  state,  or  an  elector,  in  the  cases  sta- 
ted, would  be  false  imprisonment  in  the  officer  and  the  par- 
ty procuring  the  arrest. 

The  law  has  extended  its  protection,  also,  to  certain  arti- 
cles of  personal  propert\',  which  are  protected  from  being 
taken  and  sold  to  satisfy  debts,  arid  which  cannot  lawfully 
be  attached.  These  consist  of  apparel,  bedding,  and  house- 
hold furniture,  necessary  for  upholding  life  ;  arms,  milita- 
ry equipments,  implements  of  the  debtor's  trade  ;  one  cow, 
any  number  of  sheep  not  exceeding  ten,  and  two  swine, 
being  the  property  of  one  person.  And  any  person  having 
a  wife  or  family,  there  is  ih  addition  to  these  articles,  an 
exemption  of  any  quantity  of  wood  not  exceeding  two  cords, 
any  quantity  of  hay  not  exceeding  two  tons,  any  quantity  of 
beef  or  pork  not  exceeding  two  hundred  weight,  any  quan- 
tity offish,  not  exceeding  two  hundred  pounds,  any  quantity 
of  potatoes  or  turnips,  not  exceeding  five  bushels  of  each, 
any  quantity  of  Indian  corn  orrys  not  exceeding  ten  bushels 
«f  each,  or  the  meal  or  flour  manufactured  therefrom  ;  any 

(A)  Stat.  99.        (i)  Swift's  Dig.  497. 


214 

quantity  of  wool  or  flax,  not  exceeding  twenty  pounds  of 
each,  or  the  yarn  or  cloth  made  therefrom,  and  one  stove 
and  the  pipe  belonging  thereto  ;  and  also  the  horse,  saddle 
and  bridle,  of  any  practising  physician  or  surgeon  (a).  One 
pew  in  any  meeting-house,  being  the  property  of  one  per- 
son, is  exempted  from  being  taken  and  disposed  of  for  debt 
or  taxes.  All  the  aforesaid  property,  exempted  from  be- 
ing taken  for  debt,  is  likewise  protectdd  from  distress  for 
taxes. 

The  same  notice  must  be  given  to  the  defendant  on  an  at- 
tachment as  a  summons,  and  all  writs  returnable  to  the  su- 
perior or  county  courts,  must  be  returned  forty-eight  hour? 
before  the  session  of  the  court  ;  and  those  returnable  be- 
fore a  justice  ofthe  peace,  twenty-four  hours.  The  supe- 
rior and  county  courts  may  at  their  discretion  receive  writs, 
although  not  returned  until  after  that  time,  by  disallowing 
the  officer's  fees  in  the  bill  of  cost.  Where  property  is  at- 
tached, if  the  writ  should  not  be  returned  in  season,  where- 
by the  suit  should  fail,  and  the  same  property  had  been 
subsequently  attached  by  other  creditors,  so  that  the  debt 
should  be  lost,  the  officer  would  be  personally  liable. 
Where  two  or  more  attachments  against  the  same  defend- 
ant, on  the  same  or  different  days,  that  ought  to  be  levied 
first  which  is  first  received  (6). 

Where  a  person  has  been  arrested  on  mesne  process  or 
attachment,  if,  whilst  the  officer  is  conducting  him  to  pris- 
on, he  is  rescued  or  taken  by  force  out  of  his  custody, 
he  is  not  liable,  and  may  return  the  rescue  on  the  writ  ; 
for  as  he  is  bound  to  arrest  the  person  whenever  he  can 
find  him,  and  as  he  cannot  be  supposed  to  apprehend  re- 
sistance, or  be  justified  in  always  taking  the  posse  comitatus, 
or  power  of  the  county  with  him,  it  would  be  unreasonable 
to  make  him  liable  (c).  But  on  final  process  or  execution,  a 
rescue  is  no  justification  to  an  officer,  as  he  has  an  opportu- 
nity to  take  with  him  the  power  of  the  county ;  -inri  on 
me.sne  process,  after  the  prisonei  is  within  the  wall  ofthe 
gaol,  a  rescue  is  no  justification  to  the  sheriff.  Where 
goods  t;:ken  on  mesne  process  are  rescued,  the  officer 
is  not  liable,  and  may  make  return  of  the  rescue  ;  but 
if  he  takes  goods  on  an  execution  and  returns  a  rescue, 

(a)  Stat.  56.     (b)  I  Ld.  Raym.  252.     (c)  Cro.  Jac.  419, 


he  becomes  liable  to  the  amount  of  the  goods  (d).  In  case 
of  rescue  on  mesne  process,  the  plaintiff  has  his  remedy 
against  the  rescuers  only,  whether  the  rescue  is  of  the  bo- 
dy or  goods  ;  but  in  a  rescue  on  execution,  he  has  a  reme- 
dy against  the  rescuers  or  the  officer,  and  the  officer  can 
also  maintain  an  action  against  the  rescuers. 

3.  Of  service  of  foreign  attachment. 
Foreign  attachment,  or  what  is  commonly  called  a  factor- 
ising  suit,  is  the  same  as  any  other  writ  of  attachment,  ex- 
cept that  the  defendant  is  described  as  belonging  out  of  the 
State,  and  as  being  an  absent  or  absconding  debtor,  and 
that  there  is  a  direction  to  the  officer,  to  leave  a  copy  of  the 
writ  with  a  certain  person  who  is  the  agent,  debtor,  factor, 
trustee  and  attorney  of  the  defendant,  and  has  of  the  moneys 
and  goods  of  the  defendant  in  his  hands.  If  A  is  an  absent 
and  absconding  debtor,  and  B  has  goods  of  his  in  his  posses- 
sion, concealed,  so  that  they  cannot  be  attached,  or  is  ow- 
ing A.,  any  creditor  of  A.,  may  bring  an  action  of  foreign 
attachment.  It  is  not  necessary  that  the  defendant  should 
actually  have  absconded  ;  any  person  who  is  out  of  (he 
State,  or  a  person  of  any  other  State,  and  who  hath  never 
resided  in  this  State,  who  has  property  within  this  State 
secreted  in  the  hands  of  another  person,  or  if  any  person 
within  this  state  is  indebted  to  such  debtor,  a  suit  of  foreign 
attachment  may  be  brought  against  him,  and  service  made 
by  leaving  a  copy  of  the  writ  with  such  debtor  of  the  ab- 
sent debtor,  or  the  person  having  his  property. 

It  is  the  duty  of  the  officer  having  a  writ  of  foreign  attach- 
ment, to  leave  a  true  and  attested  copy  thereof,  at  least 
fourteen  days  before  the  session  of  the  court  to  which  it  is 
returnable /with  the  person  who  is  described  in  the  writ  as 
the  absent  and  absconding  debtor's  attorney,  factor,  trus- 
tee, agent  or  debtor,  or  at  his  or  their  usual  place  of  abode, 
agreeably  to  the  direction  of  the  writ ;  and  such  service  is 
sufficient  to  give  our  courts  jurisdiction.  Where  there  are 
two  or  more  persons,  whether  partners  or  not,  who  are  de- 
scribed as  the  debtors,  &c.  of  the  defendant,  a  copy  must 
be  left  with  each. 

(d)  Cro.  Eliz.  639. 


4.  Of  service  of  Petitions. 

All  petitions  or  memorials  to  the  general  assembly,  of  an 
adversary  nature,  or  where  any  other  person  or  persons 
are  concerned  in  the  estate,  matter  or  thing  in  controversy, 
must  have  a  citation  annexed  to  such  petition,  signed  by 
any  justice  of  the  peace,  with  a  certificate  of  two  dollars 
duty  paid  thereon,  giving  notice  to  the  adverse  party  to  ap- 
pear and  be  heard,  if  he  see  cause  ;  and  must  be  served  by 
leaving  a  copy  of  the  petition  and  citation  with  the  adverse 
party,  or  at  his  or  their  usual  place  of  abode,  at  least  twelve 
days  before  the  same  is  returnable.  And  all  petitions  of 
an  adversary  nature,  to  the  general  assembly,  must  be  made 
returnable  on  Tuesday  next  after  the  opening  of  the  session, 
and  must  be  returned  to  the  Secretary  on  or  before  the  day 
next  preceding  the  day  of  return. 

All  petitions  to  the  superior,  county  or  city  courts,  must 
be  signed  by  the  party,  and  a  citation  or  summons  annexed 
thereto,  signed  by  a  justice  of  the  peace,  with  a  certificate 
of  duty  the  same  as  on  other  writs,  notifying  the  defendant 
to  appear  before  the  court ;  and  must  be  served  by  reading 
or  leaving  a  copy  of  the  petition  and  citation  with  the  re- 
spondant,  or  at  his  usual  place  of  abode,  at  least  twelve 
days  before  the  sitting  of  the  court.  And  where  the  re- 
spondant  or  defendant  lives  out  of  the  State,  the  court  to 
which  it  is  preferred,  or  hath  cognizance  thereof,  or  either 
judge  of  such  court  in  vacation,  have  power  to  make  such 
orders  relative  to  the  notice  that  shall  be  given,  as  they 
may  deem  reasonable  ;  and  notice  having  been  given  in 
pursuance  of,  and  agreeably  to  the  mode  presented  by  such 
court  or  judge,  and  proof  thereof  made,  shall  be  deemed 
sufficient  service. 

5.  Of  service  of  Writs  of  Error. 

Writs  of  error  must  be  signed  by  a  judge  of  the  court  te 
which  they  are  returnable,  who  must  take  good  and  suffi- 
cient bond  with  surety  that  thp  plaintiff  in  error  shall  pros- 
ecute his  suit  to  effect,  and  answer  all  damages  in  case  he 
fail  to  make  his  plea  good,  and  certify  a  duty  on  all  writs  of 
error  returnable  to  the  superior  court  of  one  dollar,  and  of 
two  dollars  on  those  returnable  to  the  supreme  court  of  er- 
rors. Service  is  to  be  made  by  leaving  a  copy  with  the  de- 
fendant in  error,  or  at  his  usual  place  of  abode,  with  the 


217 

usual  notice  ;  and  if  the  defendant  be  not  a  resident  of  this 
State,  then  the  copy  is  to  be  left  with  the  attorney  who  ap- 
peared for  the  defendant  in  error  in  the  original  action. 
Whenever  a  writ  of  error  is  brought  on  a  petition  for  a  high 
way,  it  may  be  served  by  reading  the  same,  or  leaving  a  co- 
py thereof  with  any  three  of  the  first  signers  of  the  peti- 
tion, or  at  their  usual  place  of  abode. 

Whenever  a  writ  of  error,  or  petition  for  new  trial,  is 
brought  in  any  criminal  case,  service  must  be  made  by  leav- 
ing a  copy  with  the  attorney  for  the  State,  in  the  county 
where  such  writ  of  error  or  petition  for  a  new  trial  may  be 
brought,  or  by  reading  the  same  in  the  hearing  of  such  at- 
torney. 

6.  Of  the  service  of  Writs  of  Replevin. 
Writs  of  replevin  are  either  to  replevy  creatures  dis- 
trained or  impounded,  or  goods  attached.  A  suit  wherein 
goods  attached  are  replevied,  is  either  by  the  defendant  in 
the  original  suit,  or  another  person  who  claims  to  be  the 
owner  of  the  goods.  In  an  action  of  replevin,  where  cattle 
are  impounded,  or  by  any  other  person  than  the  defendant 
in  the  original  suit,  where  goods  are  attached,  it  is  the  duty 
of  the  officer  to  replevy  to  the  plaintiff,  the  cattle  or  goods 
described  in  the  writ ;  that  is,  to  take  them  and  deliver  them 
into  the  possession  of  the  plaintiff ;  and  for  this  purpose 
he  may  if  necessary  command  the  power  of  the  county,  and 
afler  having  demanded  entrance,  break  open  gates  or  doors 
to  take  the  cattle  or  goods  described  in  the  writ.  He  must 
also  read  the  writ  or  leave  a  copy  thereof  with  the  defend- 
ant, and  return  the  same  as  in  other  cases.  In  an  action  of 
replevin  by  any  person  whose  goods  have  been  attached  in 
a  suit  against  himself,  the  only  object  of  the  suit  is  to  put 
him  in  possession  of  the  goods,  by  substituting  the  bond 
which  must  be  given,  in  lieu  thereof,  as  security  to  the 
plaintiff  in  the  original  action  ;  and  the  writ  does  not  con- 
tain a  declaration  of  trespass,  or  charge  the  defendant  in 
the  action  of  replevin,  (the  plaintiff  in  the  original  action,) 
of  having  taken  the  goods  wrongfully,  as  in  the  other  two 
cases.  The  officer  must  replevy  the  goods  to  the  plaintiff 
in  suit  of  replevin,  read  the  writ  to  the  plaintiff  in  original 
suit,  or  leave  witli  him  a  copy,  and  return  the  same  with 
an  endorsement  of  his  doings  thereon  to  the  same  court  to 
19 


218 

which  the  writ  on  which  the  estate  attached  and  replevied, 
is  returnable.  A  writ  of  replevin  of  this  kind,  must  be 
made  returnable  to  the  same  court  as  the  original  writ,  and 
it  is  usual  to  deliver  them  to  the  same  officer  to  be  served, 
that  they  may  be  returned  with  the  first  writ ;  they  may, 
however,  be  served  by  any  other  officer  ;  but  if  the  officer 
serving  such  writ,  fails  to  return  it  to  the  court  to  which 
the  writ  of  attachment  is  returnable,  he  is  liable  to  pay  to 
the  plaintiff  in  such  writ  of  attachment,  double  damages,  to 
be  recovered  in  an  action  brought  against  him  for  such  neg- 
lect. It  would  seem  from  the  statute,  that  if  the  wril  should 
be  made  returnable  to  a  different  court  from  that  to  which 
the  writ  on  which  the  goods  were  attached,  is  returnable, 
and  the  officer  should  return  it  according  to  the  direction 
in  the  writ  of  replevin,  he  would  be  liable.  It  is  important, 
therefore,  that  before  he  serves  the  writ,  he  satisfy  himself 
that  it  is  made  returnable  according  to  law,  that  is,  to  the 
same  court,  and  if  before  a  justice  of  the  peace  at  the  same 
time  as  the  writ  of  attachment. 

7.  Of  the  service  of  Writs  of  Habeas  Cor  pus. 
Writs  of  habeas  corpus  may  be  issued  by  any  judge  of  the 
superior  court,  or  any  judge  of  the  county  court,  during 
the  session  thereof,  or  the  chief  judge,  during  vacation,  on 
application  being  made,  accompanied  with  an  affidavit  of  the 
person  in  whose  behalf  the  application  is  made,  or  of  any 
other  person,  alleging  that  ho  verily  believes  the  person  on 
who«e  account  the  writ  prayed  for,  is  illegally  confined,  and 
deprived  of  his  liberty.  Such  writ  is  to  be  directed  to  any 
pri>rer  officer,  who  is  to  serve  the  same,  by  putting  into  the 
hands  of  the  person  who  has  the  custody  of  him,  who  is  di- 
rec'e«!  to  be  brought  up,  on  such  writ,  a  true  and  attested 
copy  of  said  writ ;  and  he  must  make  immediate  return  of 
the  same,  with  his  doings  thereon  endorsed,  to  the  judge  is- 
suinc  such  writ,  on  pain  of  forfeiting  fifty  dollars  to  the  per- 
son so  held  in  custody.  This  writ,  which  is  considered  as 
one  of  the  great  bulwarks  of  English  liberty,  is  very  sel- 
dom Applied  for,  or  issued  in  this  country,  so  extremely 
rarp  are  encroachments  upon  personal  liberty.  Where 
thf>' •••*  is  no  power  exercised,  except  what  is. derived  from 
the  people,  and  where  oppression  is  aaknown,  the  writ  of 


219 

habeas  corpus  possesses  much  less  importance  than  in  oth- 
er countries,  as  a  barrier  of  civil  liberty. 

Writs  ofscire-facias,  may  be  either  a  summons  or  attach- 
ment, and  are  to  be  served  and  returned  in  the  same  man- 
ner as  any  other  writ. 


CHAPTER  IV. 

6F  FORMS  OF  RETURNS  ON  MESNE  PROCESS. 

1 .  Endorsement  on  summons  served  by  reading. 
H      county  ss.     H       ,     day  of      A.D.     ;  then  I  read 
this  writ,  in  the  hearing  of  the  within  named  defendant. 
Test.         A.  B.  Constable. 
To  travel  to  serve  and  return,  10  m.    50 
Reading,  -    9 

$69 

JVtiere  served  by  copy. 

H  county  ss.  H  ,  day  of  A.  D.  ;  then  I  left 
a  true  and  attested  copy  of  this  writ,  with  the  within  named 
defendant.  [Or,  at  his  usual  place  of  abode.] 

Test.         A.  B.  Constable. 

On  writ  against  corporation. 

H  county  ss.  H  ,  day  of  A.  D.  ;  then  I  left 
a  true  and  attested  copy  of  this  writ  with  C.  D.  town  clerk, 
[or  select-man]  of  the  within  named  town  of  H 

Test.        A.  B.  Constable. 

Endorsement  on  the  Copy. 
This  is  a  true  copy  of  the  original  writ. 

A.  B.  Constable. 

On  Subpoena. 

H  county  ss.  H  day  of  A.  D.  ;  Then  I  read 
ihis  writ,  in  the  hearing  of  the  several  persons  within 
named. 

Where  service  cannot  be  made  for  want  of  time. 
This  writ  came  so  late  into  my  hands,  that  I  had  not 
time  to  make  service  of  the  same. 


220 

Where  on  joint  contracts  part  of  the  defendants  are  not  resi- 
dents of  this  State. 

Then  I  read  this  writ  in  the  hearing  of  the  defendant, 
A.  B.,  the  defendants,  C.  D.  and  E.  F.  not  being  inhabitants 
of  this  State. 

2.    FORMS   IN  SERVICE  OF  ATTACHMENTS. 

Where  goods  are  Attached. 

H  county  ss.  H  ,  &c.  Then,  by  virtue  hereof, 
and  by  the  direction  of  the  creditor  [if  the  fact  is  so]  I  at- 
tached a  certain  bay  horse,  the  property  of  the  within 
named  defendant,  and  on  the  seme  day  left  with  him  (or  at 
his  usual  place  of  abode)  a  true  and  attested  copy  of  this 
writ,  with  my  said  doings  thereon  endorsed.  [If  the  defend- 
ant is  not  a  resident  of  this  state,  the  endorsement  will  be  :] 
and  on  the  same  day  I  left  an  attested  copy  of  this  writ 
with  J.  S.  of  the  agent  of  the  defendant,  he  not  being 
an  inhabitant  or  resident  of  this  State. 

Where  goods  are  attached  and  rescued. 
Then,  by  virtue  hereof,  I  attached,  as  the  property  of 
the  within  named  defendant,  a  certain  bay  horse,  and  took 
the  same  into  my  possession,  and  on  the  same  day  deliver- 
ed to  the  said  defendant  a  true  and  attested  copy  of  this 
writ,  and  my  said  doings  thereon  endorsed  ;  and  afterwards, 
whilst  I  had  said  horse  in  my  custody,  viz.  on  the  day  of 
at  A.  B.,  C.  D.  and  E.  F.  and  sundry  other  per- 
sons, to  me  unknown,  with  force  and  arms,  and  with  dan- 
gerous weapons,  made  an  assault  upon  me,  and  with  like 
force  and  actual  violence,  did  forcibly  seize  and  rescue  said 
horse  out  of  my  custody ;  and  t  have  not,  on  diligent  search, 
been  able  to  find  or  retake  said  horse,  and  whereby  I  can- 
not have  the  said  horse,  to  answer  the  demand  in  this  writ ; 
and  I  can  find  no  other  goods  of  the  said  defendant  within 
my  precincts,  whereof  to  attach. 

Where  the  goods  are  destroyed,  and  •without  default  of  the  of- 
ficer. 

Then,  by  virtue  hereof,  I  attached,  as  the  property  of 
the  defendant,  a  certain  bay  horse,  and  took  the  same  into 
ray  custody,  to  have  the  same  to  aaswer  the  demand  iu  this 


221 

writ,  and  on  the  same  day  left  a  true  and  attested  copy 
hereof,  and  of  my  said  doings  thereon  endorsed,  with  the 
said  defendant ;  and  afterwards,  viz.  on  the  day  of 
the  said  horse  died  of  a  disorder  called  the  hotts,  and  the 
said  defendant  hath  no  other  goods  or  chattels  within  my 
precincts,  whereof  to  attach. 

Where  bank  or  other  stock  is  attached. 
Then,  by  virtue  hereof,  1  attached  five  shares  of  the 
stock  of  the  Phoenix  Bank,  as  the  property  of  the  defend- 
ant herein,  by  leaving  a  true  and  attested  copy  of  this  writ, 
and  of  my  doings  hereon  endorsed,  with  G.  B.  cashier  of 
said  bank,  and  on  the  same  day  I  left  a  true  and  attested 
copy  hereof,  with  my  said  doings  endorsed  thereon,  with  the 
said  defendant. 

Endorsement  on  the  copies. 

[The  copy  must  not  only  be  a  copy  of  the  writ,  but  of  ttoe 
endorsement  on  the  same,  excepting  that  part  of  the  en- 
dorsement stating  the  leaving  of  the  copy,  and  including 
the  attestation  and  signing.] — This  is  a  true  copy  of  the  ori- 
ginal writ,  and  my  endorsement  thereon. 

Wliere  partnership  property  is  attached  for  the  individual 

debt  of  one  of  the  partners. 

Then  by  virtue  hereof,  and  by  direction  of  the  creditor 
[in  all  cases  where  the  plaintiff  gives  direction,  it  is  most 
safe  to  state  it]  I  attached  all  the  following  property,  and 
all  the  right  and  interest  the  within  defendant  hath  therein, 
the  same  belonging  to  him  in  partnership,  with  A.  B.  and 
C.  D.,  partners  in  company,  under  the  name  and  firm  of  A. 
B.  &,  Co.  and  thereupon,  on  the  same  day,  left  a  true  and 
attested  copy  of  this  writ,  with  my  doings  thereon  endorsed, 
with  the  said  defendant  herein. 

Where  neither  goods  nor  the  body  can  be  found. 
Then,  by  virtue  hereof,  I  made  diligent  search  forgoodfi 
and  chattels  of  the  defendant  herein,  throughout  my  pre- 
cincts, whereof  to  attach,  and  could  find  none  ;  I  also  made 
diligent  search  for  the  defendant,  to  attach  his  body,  but 
could  not  find  the  said  defendant  within  my  precincts  ; 
whereupon  I  left  a  copy  hereof  at  his  usual  place  of  abode. 
19* 


222 

[The  copy  of  an  attachment  left  at  the  defendant's  usual 
place  of  abode,  is  good  service  as  a  summons,  and  to  hold 
the  party  to  trial.] 

Where  the  body  is  arrested  and  bail  taken. 
Then  1  made  diligent  search  throughout  my  precincts, 
for  goods  or  estate  of  the  within  named  defendant,  whereol 
.to  attach,  but  could  find  none,  and  for  want  thereof  1  attach- 
ed the  body  of  the  said  defendant,  read  this  writ  in  his  hear- 
ing, and  took  sufficient  bail  for  his  appearance  at  court. 

Bail  Bond. 

Know  all  to  whom  these  presents  may  come,  that  we. 
A.  B.  and  C.  D.,  both  of  H  in  the  county  of  H  arc 
jointly  and  severally  bound  and  obliged  to  E.  F.  of  said  H 
Constable  of  said  town  of  H  in  the  sum  of  dollars, 
to  be  paid  to  him,  the  said  E.  F.  his  certain  attorney,  exec- 
utors, administrators  or  assigns  :  to  which  payment  well 
and  truly  to  be  made  and  done,  we  bind  ourselves  jointly 
and  severally,  and  each  of  our  heirs,  executors  and  admin- 
istrators, firmly  by  these  presents. 

Signed  and  sealed  by  us,  this     day  of        A.  D.     . 

The  condition  of  the  above  obligation  is  such,  that  where 
as  the  above  bounden  A.  B.  is  arrested  at  the  suit  ofG.  H 
by  writ  duly  issued,  dated  the  day  of  demanding  the 
sum  of  damages,  returnable  before  the  county  court  tc 
be  holden  at  H  within  and  for  the  county  of  H  on  the 
Tuesday  of  A.  D.  ;  now  if  the  said  A.  B.  shall  ap- 
pear before  said  court  and  answer  to  said  action,  then  this 
obligation  to  be  void,  otherwise  to  be  in  force. 

A.  B.  and  seal. 
Signed,  sealed,  and  deliv-  )  C.  D.  and  seal. 

ered,  in  presence  of      $ 

[Where  the  writ  is  returnable  before  a  justice  of  the 
peace,  the  condition  will  be  as  follows  :]  The  condition  of 
the  above  obligation  is  such,  that  whereas  the  above  bound- 
en  A.  B.  is  attached  at  the  suit  of  G.  H.  of  by  writ  da- 
ted the  day  of  A.  D.  ,  demanding  the  sum  of  dol- 
lars, and  returnable  before  J.  P.  justice  of  the  peace  for 
the  counfy  of  H  at  his  dwelling-house  in  H  in  said 
Bounty,  on  the  day  of  A.  D.  at  the  hour  of  o'clock  : 


iiow  if  the  said  A.  B.  shall  appear  before  said  justice,  J.  P. 
at  the  time  and  place  above  written,  and  answer  to  said  ac- 
tion, then  the  above  obligation  to  be  void,  otherwise  to  be 
in  force. 

Assignment  of  Bail  Bond. 

I  hereby,  at  the  request  of  the  within  named  plaintiff, 
and  in  pursuance  of  the  statute  in  such  case  provided,  as- 
sign to  him  the  within  bail  bond. 

A.  B.  Constable. 

Where  the  defendant  is  arrested  and  committed  to  gaol. 
Then,  by  virtue  hereof,  and  for  want  of  goods  and  chattels  of 
the  within  named  defendant,  whereof  to  attach,  I  arrested  his 
body,  and  he  having  neglected  and  refused  to  find  sufficient 
bail  for  his  appearance  at  court,  and  by  virtue  of  a  mittimus 
duly  issued  for  that  purpose,  I  committed  the  said  defend- 
ant into  the  custody  of  the  keeper  of  the  gaol  in  and  for  said 
county,  therein  to  be  kept  until  delivered  by  due  course 
of  law. 

Mittimus. 

To  A.  B.  keeper  of  the  gaol  in  and  forthe  county  of  H 
Greeting — Whereas  O.  P.  of  was  this  day  arrested  by 
A..  B.  constable  of  the  town  of  H  in  the  county  of  H 
by  virtue  of  a  writ  of  attachment  duly  issued  by  J.  P.  jus- 
tice of  the  peace  for  said  county  of  H  in  favour  of  C. 
D.  against  the  said  O.  P.  demanding  dollars,  and  return- 
able to  the  county  court  next  to  be  holden  at  H  in  and 
forthe  county  of  H  on  the  Tuesday  of  A.  D.  ;  and  the 
said  O.  P.  having  neglected  and  refused  to  procure  bail  for 
his  appearance  before  said  court,  to  answer  to  said  cause  : 
These  are  therefore,  by  authority  of  the  State  of  Connecti- 
cut to  command  you  to  receive  the  said  O.  P.  into  your  cus- 
tody, and  him  safely  keep  within  said  gaol,  until  delivered 
by  due  course  of  law.  J.  M.  Justice  of  the  Peace. 

Where  there  is  an  arrest  and  rescue. 

Then,  by  virtue  hereof,  and  for  want  of  goods  and  chat- 
tels of  the  within  named  defendant,  whereof  to  attach  1  ar- 
rested his  body,  and  he  neglecting  to  find  bail,  was  proceed- 
ing with  him  to  the  gaol  of  said  connty,  to  commit  him  to 
prison,  when,  at  in  said  county,  A.  B.,  C  D.  and  E. 

F.  and  sundry  other  persons  t«  me  unknown,   with  force 


224 

and  arms,  and  with  offensive  and  dangerous  weapons,  made 
an  assault  upon  me,  and  then  and  there,  with  like  force  and 
actual  violence,  rescued  and  took  the  said  defendant 
out  of  my  hands  and  custody,  whereby  I  cannot  have 
him  forthcoming,  to  answer  the  demand  in  this  writ  ;  and 
after  diligent  search,  the  said  defendant  hath  not  since  beea 
found  by  me  within  my  precincts. 

Where  from  sickness  the  defendant  cannot  be  removed, 
Then,  by  virtue  hereof,  and  for  want  of  goods  and  estate 
of  the  within  defendant,  whereof  to  attach,  I  arrested  his 
body,  who  then  was,  and  hath  since  remained  until  the  last 
day  of  the  return  of  this  writ,  so  sick  that  he  could  not  be 
taken  into  custody  without  imminent  danger  to  his  life, 
wherefore  I  cannot  have  him  to  appear  before  said  court  as 
commanded  herein. 

Where  the  body  is  arrested,  released,  and  goods  attached. 

Then,  by  virtue  hereof,  and  for  want  of  goods  of  the 
within  defendant,  there  found  by  me,  within  my  precincts, 
whereof  to  attach,  I  arrested  his  body,  and  he  neglecting 
to  find  bail,  I  was  proceeding  with  him  to  commit  him  into 
the  custody  of  the  keeper  of  the  gaol  of  said  county,  when 
the  said  defendant  tendered  and  offered  to  me  to  be  attach- 
ed on  said  writ,  in  satisfaction  of  the  demand  therein,  and  in 
discharge  of  his  body,  a  certain  gold  watch,  the  property 
of  the  defendant,  whereupon  I  released  the  body  of  the  said 
defendant  from  my  custody  on  said  writ,  and  by  virtue 
thereof,  attached  the  said  watch,  and  on  the  same  day  left 
with  the  said  defendant  an  attested  copy  of  this  writ,  and  of 
my  doings  endorsed  thereon. 

Where  real  estate  is  attached. 
H        county,  ss.     H         ,     day  of         A.  D. 

Then,  by  virtue  hereof,  for  want  of  goods  and  chattels,  and 
by  the  direction  of.the  plaintiff,  1  attached  all  the  right,  title, 
and  interest  of  the  within  named  defendant,  in  a  certain 
parcel  of  land  situated  in  said  H  and  bounded  and  de- 

scribed as  follows  :  [here  bound  and  describe  the  land  ;] 
and  on  the  "  day  of  I  left  with  the  said  defendant,  (or 
at  his  usual  place  of  abode)  a  true  and  attested  copy  of  this 
writ,  and  of  my  endorsement  of  said  doings  made  thereon  ; 


226 

and  on  the  same  day  I  left  a  like  copy,  containing  a  descrip- 
tion of  said  land,  in  the  office  of  the  town  clerk  of  said  town 
of  H  within  which  said  land  is  situated. 

[If  the  defendant  is  not  a  resident  of  this  State,  and  has 
an  agent  or  attorney  within  the  State,  the  endorsement  will 
be,  after  describing  the  land  :] — and  on  the  day  of 
A.  D.  the  said  defendant,  not  being  a  resident  of  this  State, 
1  left  a  true  and  attested  copy  of  this  writ,  and  of  the  en- 
dorsement of  my  said  doings  made  thereon,  with  S.  T.  of 
the  agent  of  the  defendant,  and  on  the  same  day  alike 
copy  in  the  office  of  the  town  clerk,  &c. 

[If  the  defendant  has  no  agent  or  attorney  in  this  State, 
then  a  copy  is  to  be  left  with  the  person  who  has  posses- 
sion or  charge  ofthe  estate  attached,  and  the  endorsement 
will  be  as  follows,  after  the  description  ofthe  land  attached  :] 
and  on  the  day  of  A.  D.  I  left  a  true  and  attested  co- 
py of  this  writ,  and  ofthe  endorsement  of  my  said  doings 
thereon,  with  R.  R.  of  who  has  the  charge  and  posses- 
sion of  said  estate,  the  said  defendant  not  being  a  resident 
in  this  State,  nor  having  any  known  agent  or  attorney  in  the 
same  ;  and  on  the  same  day  left  a  like  copy  in  the  office  of 
the  town  clerk,  &c. 

Endorsement  on  the  copies. 

[The  copies  must  contain  not  only  a  copy  of  the  writ, 
feut  a  copy  of  the  endorsement  made  thereon,  except  that 
part  of  the  endorsement  which  states  the  leaving  of  the 
copies,  with  the  attestation  or  signing  of  the  officer,  and 
must  contain  the  following  certificate  :] 

The  above  and  within  is  a  true  copy  ofthe  original  writ, 
and  of  my  endorsement  of  my  doings  thereon. 

A.  B.,  Constable. 

3.  OF  RETURN  ON  FOREIGN  ATTACHMENT. 

Where  the  defendant  is  an  inhabitant  of  this  State,  or  has 

resided  herein. 

H  county  ss.  H  day  of  A.  D.  ;  then  by  vir- 
tue hereof,  I  attached  all  the  goods  and  effect*  ofthe  with- 
in named  defendant,  in  the  hands  of  J.  S.  described  herein, 
as  the  agent,  debtor,  factor,  trustee  and  attorney  of  the 
said  defendant,  by  leaving  with  him  (or  at  his  usual  place 
of  abode)  a  true  and  attested  copy  of  this  writ,  more  than 
fourteen  daye  before  the  day  the  same  is  returnable  ;  and 


226 

on  the  same  day  I  left  a  copy  hereof,  duly  attested,  at  the 
last  usual  place  of  abode  of  the  within  named  defendant, 
in  this  State. 

Where  the  defendant  has  never  resided  in  this  State. 
Then  by  virtue  hereof  I  attached  all  the  goods  and  ef- 
fects of  the  within  named  defendant  in  the  hands  of  J.  S. 
of  ,  described  herein  as  the  agent,  debtor,  factor,  trus- 
tee and  attorney  of  the  said  defendant,  by  leaving  a  true 
and  attested  copy  of  this  writ  at  the  usual  place  of  abode 
of  the  said  J.  S.  more  than  fourteen  days  before  the  day 
of  return  of  the  same. 

4.    OF    RETURN    ON    PETITIONS. 

H  county  ss.  H  day  of  A.  D.  ;  I  then  read 
this  petition  and  citation  in  the  hearing  of  C.  D.  the  within 
named  respondant. 

Where  served  by  copy. 

1  then  left  a  true  and  attested  copy  of  this  petition 
and  citation,  at  the  usual  place  of  abode  of  C.  D.  the  with- 
in named  respondant. 

5.  OF  RETURN  ON  WRIT  OF  ERROR. 

H  county  ss.  H  day  of  A.  D.  ;  I  then  made 
service  of  this  writ  by  leaving  'a  true  and  attested  copy 
hereof  with  C.  D.  the  within  named  defendant  in  error. 

In  a  criminal  case. 

I  then  made  service  of  this  writ  by  leaving  a  true  and 
attested  copy  hereof  with  J.  S.  attorney  for  the  State,  with- 
in and  for  the  county  of  H 

In  case  of  Petition  for  Highway. 

I  then  made  service  of  this  writ  by  leaving  a  true  and 
attested  copy  hereof  with  R.  R.  of  one  of  the  three 

first  signers  of  the  petition  for  the  laying  out  of  said  high- 
way. 

6.    OF  RETURN  ON   REPLEVIN. 

Where   Cattle   are   Impounded. 

Then  by  virtue  hereof  I  replevied  to  A.  B.  the  within 
named  plaintiff  his  beasts  described  herein,  unlawfully  dis- 
trained and  impounded  as  herein  t^ted  by  C.  D.,  and  on 
the  same  day  left  a  true  and  attested  copy  of  this  writ,  and 


227 

ef  my  doings  endorsed  thereon,  at  the  usual  place  of abodt 
of  the  said  C.  D.  the  within  named  defendant. 

[On  a  writ  to  replevy  goods  attached  in  favour  of  any 
person  not  the  defendant  in  the  original  action,  and  who 
claims  to  own  the  goods,  the  return  will  be  the  same,  as 
where  cattle  impounded,  are  replevied.] 

Where  the  beasts  or  goods  cannot  be  found. 
Then  by  virtue  hereof  I  made  diligent  search  within 
my  precincts  for  the  goods,  [or  beast,  as  the  case  may  be,] 
described  herein,  whereof  to  replevy,  but  c'ould  not  find 
the  said  goods,  the  same  having  been  eloined  by  the  with- 
in named  A.  B.  to  places  to  me  unknown,  so  that  I  could 
not  replevy  to  the  plaintiff  the  said  goods  as  herein  com- 
manded ;  and  on  the  same  day  1  left  a  copy  of  this  writ, 
duly  attested,  at  the  usu»J  place  of  abode  of  the  said  A.  B. 
the  within  defendant. 

Where  goods  attached  are  replevied  by  the  defendant  in  the 

original  suit. 

Then  by  virtue  hereof  I  replevied  to  the  within  named 
C.  D.  the  goods  described  herein,  attached  at  the  suit  of 
A.  B.  against  the  said  C.  D.  and  read  this  writ  in  the  hear- 
ing of  the  said  A.  B. 

7.    OF  ACTION  ON  WRIT  OF  HABEAS   CORPUS. 

Then  agreeably  to  the  direction  herein,  I  made  service 
of  this  writ  by  putting  into  the  hands  of  the  within  named 
A.  B.,  who  hath  the  custody  of  C.  D.  mentioned  herein, 
a  true  copy  of  the  same  duly  attested. 


CHAPTER  V. 

OF  THE  SERVICE  OF  FINAL  PROCESS  IN  CIVIL  CASES. 

When  final  judgment  is  rendered  in  any  cause,  the  last 
and  most  important  thing  remains  to  be  done,  which  is  to 
execute  the  judgment,  or  give  the  p^rty  who  is  entitled 
to  it,  the  benefit  and  enjoyment  of  the  same.  And  for  this 
purpose,  fi"al  pvoross  o;  i  \\vit  of  rx<Tution  is  issued,  di- 
recting the  officer  to  levy  the  amount  «f  the  judgment  and 


228 

pay  the  same  to  the  party  in  whose  favour  it  was  rendered s 
or  in  an  action  of  ejectment,  to  put  the  plaintiff  into  pos- 
session of  the  land,  or  to  do  whatever  may  be  necessary  to 
enforce  and  enter  into  effect  the  judgment.  We  will  con- 
sider first  the  duty  of  an  officer  in  serving  or  executing  an 
ordinary  writ  of  execution. 

1.  Of  the  Service  of  Writs  of  Execution  in  Ordinary  Form. 

All  executions  issued  upon  any  judgment  of  the  superi- 
or or  county  courts,  must  be  returnable  to  the  next  term 
of  the  court,  or  within  sixty  days  from  the  date  ;  and 
those  issued  by  a  justice  of  the  peace,  must  in  all  cases, 
be  made  returnable  in  sixty  days  from  their  date  :  if  gran- 
ted for  any  shorter  or  longer  time,  they  would  be  illegal 
and  void.  An  execution  may  be  directed  by  the  superior 
or  county  courts,  or  the  clerks  of  those  courts,  or  by  a 
justice  of  the  peace,  on  any  judgment  recovered  before 
him,  to  the  sheriff  of  any  county  in  the  State,  and  the  con- 
stables of  any  town  thereof;  but  it  cannot  be  altered  by 
any  other  person  and  directed  to  any  other  officer,  and 
where  this  was  done,  and  the  debtor  arrested  by  such  offi- 
cer, the  arrest  was  adjudged  illegal,  and  the  debtor  dis- 
charged therefrom  by  writ  of  habeas  corpus.  Neither 
can  the  party  or  any  other  person,  except  the  authority 
granting  the  same,  alter  the  date  of  an  execution  to  extend 
the  life  of  it,  and  if  this  should  be  done,  the  execution 
would  be  void,  and  the  acts  done  in  pursuance  of  it  illegal, 
and  the  officer  a  trespasser. 

An  execution  mny  be  renewed  or  an  alias  or  second 
execution  granted  by  the  authority  from  whom  the  same 
issued ;  but  this  cannot  be  done  until  the  first  is  re- 
turned, nor  until  after  the  expiration  of  the  sixty  days. 

The  alias  execution  may  be  ante-dated  when  issued, 
but  must  not  be  dated  back  so  as  to  bear  date  within 
the  first  sixtv  days.  I.  is  a  common  practice  with  justices 
of  the  peace  to  renew  the  6^  :  execution,  by  altering  the 
date,  and  there  can  be  no  <  jrotion  to  this,  when  it  has 
not  been  in  the  hand*  of  an  officer  or  any  proceedings  had 
therein  ;  but  if  any  thing  h  is  been  done  on  the  execution, 
or  any  return  is  made  thereon,  it  should  be  kept  on  file  as 
a  pfcrt  of  tv>e  record*  of  the  cause,  and  a  new  execution 
granted,  which  should  contain  a  copy  of  the  endorsement 


229 

..ti  the  first.  If  the  plaintiff  or  defendant  be  dead,  or 
where  the  execution  has  been  levied  on  the  body  of  the 
defendant  and  he  has  been  discharged  from  gaol  by  taking 
the  poor  debtor's  oath,  an  alias  execution  cannot  be  issued  ; 
but  an  action  of  scire  facias  or  debt  on  the  judgment,  must 
be  brought  and  a  new  judgment  obtained.  But  where  an 
execution  has  been  endorsed  satisfied,  by  mistake,  or  is  ap- 
parently satisfied  by  a  mistaken  levy,  as  when  goods  are 
levied  on  and  sold,  that  were  the  property  of  another  per- 
son, or  where  land  supposed  to  belong  to  the  defendant,  but 
which  in  fact  belonged  to  another  person,  is  set  ofi' thereon, 
or  where  land  belonging  to  the  defendant  as  tenant  in  com- 
mon, or  his  interest  in  mortgaged  estate  is  set  off  by  metes 
and  bound*,  whereby  the  plaintiff  gets  no  title,  the  county 
and  superior  courts  grant  an  alias  execution  on  motion. 
The  motion  must  be  in  writing  stating  the  grounds  of  the 
application.  A  justice  of  the  peace  under  the  same  cir- 
cumstances, may  issue  a  second  execution,  but  he  should 
require  a  motion  or  statement  in  writing,  containing  the 
reasons  and  grounds  of  the  application  ;  ;md  should  require 
proof  of  the  truths  of  the  facts  contained  in  such  motion, 
and  certify  thereon  that  the  same  were  found  to  be  true, 
and  preserve  the  same  on  file  ;  otherwise  it  would  appear 
from  his  records  that  a  second  execution  had  been  issued 
after  the  judgment  had  been  satisfied. 

An  execution  in  common  cases  contains  a  recital  of  the 
judgment,  and  a  command  to  the  officer  to  levy  of  the  goods, 
chattels  and  lands  of  the  debtor,  and  the  sa«ne  cause  to  be 
disposed  of  according  to  1-uv,  to  satisfy  the  judgment,  and 
his  fees  ;  and  for  want  thereof,  to  take  the  body  of  the 
debtor,  and  him  commit  to  the  keeper  of  the  gaol  in  the 
same  county. 

It  is  the  duty  of  an  officer  having  an  execution  in  his 
hands  to  execute,  to  make1  demand  of  the  debtor  of  the 
sums  contained  in  the  execution  ;  the  demand  must  be  made 
within  his  precincts,  and  regul-irl\  he  should  repair  to  the 
debtor's  usual  place  of  abode  and  nuke  the  dem.iii.l  there  ; 
but  a  demand  any  where  within  his  presence  is  sufficient. 
If  on  demand  of  the  sum  due  on  the  execution  and  of  his 
fees,  the  debtor  ne-j;locts  or  refuses  to  pay  the  same,  the 
officer  must  endorse  on  the  execution,  the  time  and  place 
of  his  making  such  demand,  and  thereupon  must  l«vy  the 
20 


230 

execution  on  the  personal  estate  of  the  debtor,  excepting 
such  articles  as  are  exempted  by  law  from  being  taken  for 
debt,  and  on  those  when  turned  out  by  the  debtor.  We 
noticed  the  articles  exempted  in  treating  of  the  service  of 
attachments,  page  213.  A  description  of  the  property 
taken  must  be  set  up  on  the  sign-post  in  the  society  where 
the  same  was  seized,  and  accompanying  the  same  a  notice 
that  the  property  will  be  sold  at  the  place  where  posted, 
at  public  ve.ndue,  at  the  end  of  twenty  days,  specifying  the 
day  when  the  sale  is  to  take  place.  And  in  those  societies 
from  parts  of  two  or  more  towns,  the  constables  of  such 
towns  shall  have  the  same  power  and  authority  where  the 
sign-post  shall  be  without  the  limits  of  the  town  to  which 
they  belong,  as  other  constables  have  within  their  respec- 
tive districts.  J  here  appears  to  be  a  mistake  in  this  par- 
agraph in  the  statute  ;  the  word  society  is  evidently  used 
instead  of  that  of  town.  If  the  debtor  does  not  pay  the 
execution  and  charges  within  the  twenty  days,  the  officer, 
on  the  day  of  sale,  at  the  beat  of  the  drum,  must  dispose 
of  so  much  of  the  property  posted,  to  the  highest  bidder, 
as  is  necessary  to  pay  the  execution,  and  the  lawful  fees 
and  expenses,  which  have  accrued,  and  the  overplus,  if 
any,  he  may  return  to  the  debtor  (a).  When  he  levies 
on  goods  the  officer  must  t;ike  them  into  his  possession, 
and  remove  them  out  of  the  possession  of  the  debtor,  or 
they  may  be  attached  or  taken  by  any  other  creditor,  in 
which  case  he  will  become  liable  for  the  debt.  He  must 
also  produce  the  goods  taken,  at  the  post,  for  sale,  when 
the  articles  can  be  removed  ;  but  when,  from  their  nature 
or  bulk,  this  Cannot  he  reasonably  done,  they  may  be  sold 
by  samples  or  description.  An  execution  may  be  levied 
on  money  and  the  sime  applied  to  the  payment  thereof: 
bank  bills  are  considered  as  money  forming  the  currency 
of  the  country,  and  may  be  taken  and  applied  as  such. 
Not  only  the  articles  of  property  exempt,  but  any  personal 
property  may  be  so  situated  that  it  cannot  be  taken  and 
soH  on  -xecution.  Goods  p.uvned  for  debts,  or  let  for 
hire,  for  a  period  of  time,  or  distrained  or  attached  by  a 
prior  attachment,  and  h  >ve  been  previously  taken  on  exe- 
cution, and  in  all  cases,  where  the  owner  has  not  the  right 

(a)  St.  56. 


231 

ful  possession,  cannot  be  taken  and  sold  on  execution. 
If  however,  the  creditor  purchase  or  procure  the  right  of 
the  person  having  an  interest  therein,  they  may  be  taken  ; 
and  where  goods  are  pawned  for  debt,  it  would  seem  that 
if  the  creditor  would  pay  or  tender  to  the  pawnee  the 
amount  of  his  debt,  for  which  the  goods  are  pawned,  he 
might  be  justified  in  taking  them. 

Where  goods  are  attached  by  a  subsequent  attachment, 
they  are  held  subject  to  the  claim  of  the  prior  attachment, 
and  if  the  prior  creditor  does  not  take  out  execution  and 
levy  on  the  goods  within  sixt}'  days  after  the  final  judgment, 
they  may  be  taken  and  sold  on  the  execution  issued  upon 
the  judgment  obtained  in  the  subsequent  suit.  If  the  pri- 
or attaching  creditor  has  the  goods  taken  on  his  execution 
within  the  sixty  days  and  sold,  what  there  is  left,  after  pay- 
ing his  debt  and  charges,  are  held  for  the  subsequent  cred- 
itor, and  must  be  levied  on  by  him  within  sixty  days  after 
the  sale  on  the  first  execution.  It  is  equally  reasonable 
and  necessary,  that  a  creditor  should  have  the  right  of  levy- 
ing his  execution  on  goods  which  had  previously  been  lev- 
ied on,  and  hold  the  same,  subject  to  the  prior  claim  as  it 
is  that  goods  may  be  taken  and  held  by  subsequent  attach- 
ment. It  is  believed  there  can  be  no  objection  to  this,  and 
that  the  levy  of  an  execution  on  goods  previously  levied 
upon,  which  give  the  creditor  a  lien  thereon  subject  to  the 
rights  of  the  prior  creditor  ;  and  that  the  same  might  be 
posted,  with  a  notice  that  such  part  thereof  would  be  sold, 
as  might  remain  after  the  first  execution  had  been  satisfied 
therefrom,  &  as  might  be  necessary  to  satisfy  the  subsequent 
execution  and  charges.  But  in  such  a  case,  and  in  all  the  ca- 
ses stated  where  a  third  person  has  a  lien  upon  goods,  and  the 
debtor  has  not  the  legal  possession  of  them,  it  is  not  the  duty 
of  the  officer  to  take  them  unless  directed  by  the  creditor. 
In  case  the  property  consists  of  an  entire  and  indivisible 
article,  as  a  jhorse,  a  subsequent  levy  may  be  made  upon  it, 
and  the  same  posted  for  sale,  as  in  other  cases,  and  notice 
thereof  given  to  the  officer  who  had  levied  the  prior  exe- 
cution thereon,  and  it  would  seem  that  he  would  be  obliged, 
after  satisfying  his  execution  and  costs,  to  pay  the  over- 
plus, to  the  officer  making  such  subsequent  levy  ;  instead  of 
paying  the  same  to  the  debtor. 

Where  a  subsequent  attachment  is  levied  on  a  horse  the 
avails  thereof,  after  satisfying  the  first  judgment,  must  be 


232 

applied  to  the  judgment  recovered  in  the  subsequent  at- 
taching suit,  and  the  reason  is  the  same  where  the  prop- 
erty is  taken  on  executions.  Choses  in  action,  notes,  bonds, 
and  accounts,  cannot  be  levied  on  ;  but  it  is  believed,  that 
a  negotiable  note  or  bill  of  exchange,  payable  to  bearer; 
or  if  payable  to  order  indorsed  in  blank,  by  the  payee,  so 
as  to  be  transferable  by  delivery,  might  be  levied  on  and 
sold  like  other  personal  property  (n). 

Corn,  or  other  crops,  growing,  where  the  debtor  has  no 
interest  in  the  soils,  is  a  chattel,  and  may  be  taken  and 
sold  on  execution,  standing  in  the  field,  or  if  it  is  in  a  sit- 
uation to  harvest,  within  the  twenty  days  after  the  levy,  it 
mr.y  be  harvested  and  sold.  If  sold  growing,  the  officer 
c;,:>.  <jive  a  bill  of  sale  of  it,  and  if  the  owner  of  the  land 
should  prevent  the  purchaser  from  harvesting  it,  an  action 
nf  trespass  will  lie  against  him  (o).  This  is  according  to 
the  English  decisions,  and  those  in  the  State  of  New-York 
and  Massachusetts  ;  the  principle  has  not  been  sanctioned 
by  our  courts,  but  there  can  be  little  doubt  it  will  be  re- 
cognized as  law  in  this  State.  Where  the  debtor  owns 
half,  or  a  certain  part  of  growing  crops,  his  share  or  part 
may  be  levied  on  and  sold  in  the  field  standing,  or  harvest- 
ed, and  divided,  and  his  share  only  sold.  The  whole  of  a 
debtor's  growing  corn  or  rye  cannot  be  sold  unless  he  has 
ten  bushels  which  has  been  harvested,  that  quantity  being 
protected  from  being  taken.  We  apprehend  that  growing 
crops  cannot  be  taken  where  the  debtor  owns  the  land  al- 
so ;  but  if  there  is  no  personal  estate  the  execution  must 
be  levied  on  the  land,  and  the  same  appraised,  including 
the  crops,  and  then  if  the  debtor  should  remove  the  crops 
before  the  creditor  could  obtain  possession,  he  might  after 
obtaining  possession,  maintain  an  action  of  trespass  against 
the  debtor  for  the  damage. 

Whatever  belongs  to  the  freehold  and  is  a  part  of  the 
realty,  cannot  be  levied  on,  and  separated  from  the  realty 
and  sold  as  personal  estate.  The  common  law  principle  is, 
that  whatever  goes  to  the  heir  is  a  part  of  the  realty,  and 
whatever  is  assets  in  the  hands  of  the  executor  is  personal 
estate.  This  rule  is  of  little  use,  as  it  must  still  be  de- 
termined what  articles  descend  to  the  heir,  and  what  go  to 

!n\  Swf.  Dig.  796.  (»)  9  John,  10P- 


233 

the  executor.  Manure  in  heaps,  or  where  it  can  be  sepa- 
rated from  the  soil,  is  personal  property,  and  may  be  levi- 
ed on.  Cider-mills  and  barns  erected  by  tenants  for  their 
own  convenience,  may  be  removed  by  them,  and  may 
doubtless  be  levied  on  by  their  creditors  and  sold  as  a  per- 
sonal chattel,  and  then  removed  by  the  creditor,  during  the 
term  of  the  tenant  (e)  It  is  said  that  leases  or  terms  for 
years,  being  chattels,  may  be  levied  on  and  sold  for  person- 
al estate  (g).  It  is  true  that  a  term  for  years  is,  at  com- 
mon law,  considered  a  chattel  ;  it  is  not  however  a  person- 
al chattel,  but  a  chattel  real,  and  is  a  part  of  the  realty. 
If  the  interest  a  debtor  has  in  a  term  for  years,  may  be 
taken  and  sold  as  personal  estate,  the  principal  must  ex- 
tend to  all  leases,  for  however  long  a  period,  and  it  is  evi- 
dent that  long  terms  comprise  the  principal  value  of  the 
estate  ;  and  if  they  are  taken  and  sold  as  personal  proper- 
ty, it  will  be  violating  the  spirit  of  the  law,  which  requires 
that  real  estate  shall  not  be  sold  on  eKecution,  but  apprais- 
ed off ;  and  it  would  be  an  equal  violation  of  our  register- 
ing act,  (which  forms  a  great  principle  in  the  laws  of  this 
state,)  requiring  that  all  transfers  of  land  shall  be  recorded 
in  the  town  where  the  lands  lie.  When  real  estate  is  lev- 
ied on,  and  set  off,  on  execution,  the  proceedings  must  be 
recorded  in  the  records  of  lands  of  the  town  where  the 
estate  lies,  without  which  the  title  is  not  acquired  ;  but  if 
a  term,  which  may  comprise  the  principal  interest,  is  sold 
as  a  personal  chattel,  there  will  be  no  evidence  of  the  trans- 
fer and  conveyance  in  the  records  of  lands  in  the  town,  as 
the  officer  is  not  required  to  leave  a  copy  of  his  execution 
and  doings  thereon,  and  if  he  should,  it  would  be  of  no 
avail.  But  how  can  an  officer  convey  a  term  for  years  by 
a  bill  of  sale,  when  it  is  expressly  provided  by  statute  that 
no  lease  for  a  longer  period  than  one  year,  shall  be  valid, 
unless  acknowledged  and  recorded,  the  same  as  a  deed. 
If  the  debtor  cannot  himself  sell  a  term  for  a  greater  pe- 
riod than  one  year,  otherwise  than  as  real  estate,  can  a 
creditor  by  levying  on  it,  acquire  a  right  that  the  owner 
did  not  himself  possess  ?  Is  the  officer  to  give  a  deed  or 
lease  executed  with  the  requisite  form  and  solemnities  ? 
What  law  is  there  for  this  ?  The  statute  has  placed  term* 

{«)  Swf.  Dig.  796.  (g)  Swf.  Dig.  7S9. 

20* 


234 

for  more  than  one  year  on  the  same  ground,  as  it  respects 
their  conveyance,  as  freehold  estates.  Of  what  validity 
then  will  be  a  deed  executed  by  an  officer,  of  a  term  of 
years,  more  than  of  fee  simple  ?  The  conveyance  execu- 
ted by  an  officer  is  of  no  importance  in  any  case  in  itself ; 
the  title  of  the  purchaser  does  not  rest  upon  that,  but  up- 
on the  act  of  sale  ;  if  that  is  illegal,  the  conveyance,  let 
it  be  what  it  may,  will  not  help  the  title.  We  believe  it 
has  always  been  the  practice  to  levy  on  terms  for  years, 
as  real  estate,  and  have  it  set  off  as  such,  and  this  we  think 
the  only  safe  way.  It  has  received  the  sanction  of  the 
superior  court,  who  also  express  an  opinion  that  a  term 
for  years  can  be  sold  as  personal  property  (a). 

Where  property  is  taken,  which  from  the  nature  of  it 
will  perish,  before  the  expiration  of  twenty  days,  it  is  usu- 
al to  make  sale  of  the  same  immediately,  giving  such  pub- 
lic notice  thereof  as  can  reasonably  be  done  ;  and  where 
an  officer  acts  faithfully  and  reasonably,  for  the  interest  of 
the  debtor,  as  well  as  the  creditor,  he  will  be  justified. 

When  a  debtor  has  fraudulently  conveyed  away  goods, 
they  may  be  levied  on  and  sold,  by  virtue  of  an  execution 
against  such  debtor.  If  the  goods  turn  out  not  to  have 
been  conveyed  fraudulently,  and  consequently  not  to  be 
the  property  of  the  debtor,  the  officer  will  be  liable  to  the 
owner  :  and  it  is  believed  that  the  purchaser  would  not 
get  a  legal  title  to  them,  provided  the  owner  was  under  the 
necessity  of  looking  to  him  ;  but  as  the  officer  is  liable 
the  owner  makes  his  claim  on  him,  and  having  obtained 
satisfaction  from  the  officer  or  creditor,  he  can  have  no 
claim  upon  the  purchaser.  If  however  a  public  sale  of 
property,  taken  on  execution  has  the  same  character  here 
as  a  sale  in  a  market  overt,  in  England,  the  title  of  the  pur- 
chaser will  be  complete,  and  indefeasible,  and  so  it  is  gener- 
ally regarded,  there  being  no  occasion  to  look  to  the  pur- 
chaser, as  the  sheriff  and  his  deputies  are  always  respon- 
sible, having  given  bonds  ;  but  constables  are  not  always  re- 
sponsible and  give  no  such  security.  If  the  creditor  di- 
rect the  officer  to  take  the  property,  he  will  be  liable-to 
indemnify  the  officer,  but  if  he  gave  no  direction  the  office-- 
has no  claim  upon  him,  for  indemnity. 

(•)  Root  15. 


235 

Where  property  lias  been  faaudulently  conveyed,  and  in 
all  cases  where  there  is  doubt  as  to  its  belonging  to  the 
debtor,  it  is  most  safe  for  the  officer  to  obtain  the  direction 
of  the  creditor,  and  it  is  certainly  reasonable  he  should  give 
it,  yet  if  he  refuse,  the  officer  must  act  at  his  own  ri«k  ;  if 
he  take  the  property,  and  it  prove  to  belong  to  another 
person,  he  will  be  liable  to  the  owner  for  the  same,  and 
will  have  no  claim  on  the  creditor  for  indemnity  ;  and  on 
the  other  hand,  if  he  neglects  to  take  the  property,  and  it 
afterwards  appears  to  have  been  the  property  of  the  debt- 
or, and  that  he  might  have  levied  on  the  same,  and  satisfied 
the  execution,  he  becomes  liable  to  the  creditor  (ft).  He 
is  not  obliged  to  levy,  unless  there  is  property  sufficient 
to  satisfy  the  execution  ;  yet,  here  too,  he  must  decide  at 
his  peril,  unless  the  creditor  will  direct  him,  for  if  he  takes 
the  goods,  and  they  prove  insufficient,  he  becomes  liable  to 
the  creditor  for  the  deficiency,  unless  he  can  find  other 
property,  or  takes  the  body  within  the  life  of  the  execution  ; 
and  if  he  neglects  to  take  the  property,  on  the  ground  of 
there  not  being  a  sufficiency,  and  it  afterwards  can  be  prov- 
ed that  the  same  was  sufficient,  he  becomes  liable  for  the  full 
amount  of  the  execution.  Where  there  is  doubt  as  to  the 
sufficiency  of  the  estate,  unless  the  creditor  will  turn  it  out 
or  give  directions  to  levy  on  it,  it  is  the  safest  for  the  officer 
to  levy  on  the  property  at  an  early  period  of  the  execution, 
so  that,  after  the  sale  thereof,  he  may  be  able  to  levy  on 
the  body  within  the  life  of  the  execution.  He  must 
execute  the  writ,  and  make  a  legal  return  within  the 
life  of  the  execution,  and  this  requires  that  he  either 
take  goods  sufficient  to  satisfy  the  same,  take  and  com- 
mit the  body,  or  return  that  he  can  find  neither  goods 
or  the  body.  li  there  are  not  goods  sufficient  to  satisfy  the 
execution,  he  is  not  bound  to  take  them,  but  must  take  the 
body.  If,  however,  he  levy  on  the  goods,  and  sell  them, 
in  part  satisfaction,  and  then  within  the  life  of  the  execution, 
levy  on  more  goods,  enough  to  satisfy  the  execution,  or  take 
the  body  and  make  return  accordingly,  he  will  be  justified. 
Where  he  takes  goods  partly  enough  to  satisfy  the  execution, 
being  all  that  can  be  found,  in  case  the  defendant  has  not 
been  within  his  precinct?  whilst  he  has  had  the  execution 
in  his  hands,  so  that  he  might  have  been  taken,  he  is  justi- 

(h)  Swf.  Dig.  797. 


tied  ;  and  where  the  body  cannot  be  found,  it  is  the  duty  of 
the  officer  to  take  goods,  although  insufficient,  as  he  must 
dt>  all  he  can  to  execute  the  writ  ;  but  where  the  body  can 
Betaken,  he  cannot  safely  levy  on  goods,  unless  they  are 
sufficient.  But  if  the  debtor  has  personal  property  suffi- 
cient to  satisfy  the  execution  and  charges,  which  might  be 
found  and  taken  by  due  diligence,  and  the  officer  neglects 
to  do  it,  and  levies  on  the  body,  he  is  liable  to  the  debtor 
for  false  imprisonment,  and  to  the  creditor  for  the  debt  if  it 
is  lost.  He  cannot  require  the  creditor  or  debtor  to  turn 
out  goods,  but  it  is  his  duty  to  search  for  them,  and  levy 
thereon. 

If  an  officer  take  estate  greatly  more  than  sufficient,  and 
sell  the  same,  so  that  the  debtor  sustain  an  unnecessary  sac- 
rifice, he  will  be  liable  ;  yet,  as  respects  many  kinds  of 
property,  it  is  extremely  uncertain  what  it  will  sell  fur  at 
auction,  if  an  officer  act  fairly  and  in  good  faith,  although  he 
take  more  property  than  was  necessary,  lie  will  be  justifi- 
ed ;  but  if  he  do  it  with  a  view  to  oppress  the  debtor,  he 
will  be  subjected  to  heavy  damages.  So  if  an  officer  de- 
cline to  take  goods  apparently  insufficient,  and  levy  on  the 
bod3r,  and  it  should  afterwards  appear  that  the  goods  were 
sufficient,  if  he  acted  honestly  and  only  misjudged,  courts 
would  not  be  rigid  towards  him  (i). 

If  sufficient  personal  property  cannot  be  found,  and  the 
creditor  does  not  direct  the  execution  to  be  levied  on  real 
estate,  it  is  the  duty  of  the  officer  to  take  the  body  of  the 
debtor  ;  and  if  he  neglect  to  do  this,  in  case  the  body  might 
have  been  taken  with  proper  diligence,  he  becomes  liable. 
Whether  an  officer,  having  in  his  hands  an  execution,  actu- 
ally sees  the  debtor  or  not,  yet  ifhe  might  have  been  taken 
by  due  diligence,  and  the  officer  fails  to  do  it,  and  makes  a 
return  of  non  esl  inventus,  he  will  be  liable.  As  to  what 
constitutes  an  arrest,  and  the  law  relating  to  that  subject, 
we  must  refer  to  our  remarks  on  the  service  of  attachments, 
the  same  principles  being  applicable  to  arrests,  whetheron 
attachment  or  execution.  After  having  arrested  the  body 
for  want  of  goods,  if  personal  property  is  found  or  tendered, 
the  body  may  be  released  and  the  goods  taken.  But  the 
officer,  after  having  legally  arrested  the  body,  is  not  obliged 
to  take  goods  on  their  being  tendered  by  the  debtor  and 

(i)  Swf.  Dig.  797, 


237 

discharge  the  body,  for  the  debtor  having  refused  to  pro- 
duce estate,  whereby  his  body  has  been  legally  taken,  it 
would  be  unreasonable  that  the  officer  should  be  obliged  to 
risk  the  sufficiency  or  the  title  to  the  estate  after  he  has 
once  made  a  legal  levy  of  the  execution.  But  if  the  cred- 
itor should  direct  the  bod}'  released  and  goods  taken,  it  is 
believed  the  officer  would  not  be  justified  as  respects  him 
in  declining  to  do  it.  But  if  the  debtor  pay  the  money  on 
the  execution,  or  tender  the  same,  the  officer  could  not  be 
justified  in  committing  him  to  gaol.  When  the  body  of  the 
debtor  is  taken,  he  must,  according  to  the  principles  of  the 
common  law,  be  kept  in  the  actual  custody  of  the  officer, 
and  conveyed  to  gaol  as  soon  as  convenient,  anil  in  the  most 
direct  manner  (a).  If  after  arresting  the  body  ofthe  debt- 
or, the  officer  permit  him  to  go  at  large,  out  of  his  custody, 
it  is  a  voluntary  escape,  and  the  retaking  and  committing 
him  to  prison,  within  the  life  ofthe  execution,  will  not  save 
him  harmless,  but  he  will  be  liable  for  the  debt.  In  this 
State,  however,  it  has  been  decided  by  the  superior  court, 
that  an  officer,  after  an  arrest,  might  permit  the  debtor  to  go 
at  large  until  the  last  day  ofthe  execution,  and  then  com- 
mit him,  without  being  liable  for  an  escape  (c). 

As  the  principle  of  this  decision  has  not  received  the 
sanction  ofthe  supreme  court  of  errors,  it  is  not  advisable 
for  an  officer  to  permit  a  person  arrested  on  execution,  to 
go  at  large,  even  where  he  may  feel  no  anxiety  as  to  being 
able  to  retake  him  during  the  life  of  the  execution.  On 
mesne  process,  an  officer  may  permit  a  prisoner  to  go  at 
large,  provided  he  has  him  at  the  return  of  the  writ  (i). 
But  in  case  of  voluntary  escape,  on  final  process,  the  officer 
is  not  permitted  to  retake  the  prisoner,  and  if  he  do,  it  is 
false  imprisonment  (fc).  If  the  court  of  errors  should  over- 
rule the  decision  ofthe  superior  court,  and  recognize  the 
common  law  principle,  that  permitting  a  prisoner  to  go  at 
large  after  arrest  on  execution,  is  a  voluntary  escape,  the 
officer  would  not  be  permitted  to  retake  him  during  the  life 
ofthe  execution,  and  if  he  should,  it  would  not  save  him 
from  his  liability  to  the  creditor,  and  at  the  same  time,  he 
would  be  liable  to  the  debtor  for  f-ilse  imprisonment. 
Where  an  officer  does  not  intend  to  commit  a  debtor  imme- 

'a)  I  Bos.  and  Pul.  27.         (c)  2  Root,  133.         (?)  2  T.  R.  172. 
(fc)2T.  R.  177. 


diately  to  gaol,  he  ought  not  to  arrest  him,  for  if  he  does  not 
actually  arrest  him,  he  may  take  him  at  any  time  during 
the  life  of  the  execution,  which  will  be  sufficient.  The 
only  risk,  if  he  sees  him  and  does  not  make  an  arrest,  will 
be  as  to  his  being  able  to  take  him  during  the  life  of  the  ex- 
ecution ;  but  if  he  is  arrested,  and  permitted  to  go  at  large, 
it  may  be  a  question,  whether  retaking  and  committing  him 
to  gaol  within  the  life  of  the  execution,  will  justify  the  offi- 
cer. It  has  been  decided  in  the  state  of  New- York,  that 
where  a  debtor  who  had  been  arrested  on  execution  was 
permitted  to  have  his  liberty  on  the  promise  of  another  per- 
son to  pay  the  debt  if  he  iail  to  deliver  him  by  a  certain 
day,  was  a  voluntary  escape  in  the  officer,  and  the  promise 
to  deliver  him,  void  (o).  In  case  of  voluntary  escape,  as 
well  as  of  negligent  escape,  the  creditor  has  a  claim  on  the 
officer,  and  still  holds  his  claim  on  the  debtor  ;  but  in  a  vol- 
untary escape,  the  officer  has  no  claim  on  the  debtor.  It 
is  a  clear  principle  of  the  common  law,  that  it  the  plaintiff 
discharge  the  debtor  from  arrest  on  an  execution,  or  if  the 
officer  permit  him  to  go  at  large  with  the  consent  of  the 
plaintiff,  the  debtor  not  only  cannot  be  retaken  on  the  ex- 
ecution, but  is  entirely  discharged  from  the  judgment.  And 
although  the  party  is  discharged  on  an  agreement  to  pay 
the  debt  which  is  not  complied  with,  or  to  surrender  him- 
self by  a  given  day,  if  he  did  not  in  the  mean  time  pay  the 
debt,  the  law  is  the  same  (p}.  So  where  the  plaintiff  con- 
sents to  discharge  one  of  several  defendants,  this  is  a  dis- 
charge of  all,  being  a  discharge  of  the  judgment,  and  the 
others  cannot  afterwards  be  taken.  Where  the  defendant 
agreed  on  being  discharged  out  of  custody  by  the  consent 
of  the  plaintiff,  that  the  judgment  should  stand  revived  for 
twelve  months,  it  was  held  to  be  void.  So  a  bond  taken  for 
the  surrender  of  a  prisoner  on  a  certain  day  that  he  miijht 
be  retaken,  who  had  been  discharged  out  of  custody  of  ex- 
ecution, by  the  consent  of  the  plaintiff,  was  held  to  be  void. 
The  discharge  of  the  prisoner  by  the  creditor,  or  by  the 
officer  with  his  consent,  is  considered  as  a  discharge  of  the 
judgment,  and  the  plaintiff  is  thereby  deprived  of  ereri;  rem- 
edy, against  the  debtor.  It  is  understood  to  h; 
cently  decided  by  the  court  of  errors  in  this  State,  that  the 

((>}  13  John.  366.         (p)  6  T.  R.  525. 


J.j-J 

discharge  of  the  debtor  by  the  plaintiff  from  arrest  on  execu- 
tion, was  a  discharge  or  satisfaction  of  the  judgment. 

When  a  debtor  is  committed  to  gaol,  the  officer  must 
leave  with  the  gaoler  a  copy  of  his  execution  and  of  the  en- 
dorsement of  hi?  doings  thereon,  which  is  a  sufficient  war' 
rant  for  the  gaoler.  Where  a  debtor  is  committed  to  gaol 
on  attachment  for  want  of  bail,  the  execution  must  be  levied 
on  him  within  five  days  after  final  judgment.  When  an  of- 
ficer has  levied  on  goods  during  the  life  of  an  execution, 
he  may  sell  them,  after  the  sixty  days  have  elapsed  ;  and  so 
if  his  term  of  office  expire  after  the  levy,  either  before  or 
after  the  execution  is  run  out,  he  may  complete  the  sale. 
But  he  cannot  make  a  levy,  after  either  the  execution  or 
his  office  has  expired. 

Where  partnership  property  is  taken  on  an  execution 
against  one  of  the  partners  for  his  individual  debt,  it  must 
be  posted,  and  the  right  or  interest  of  such  partner  therein 
sold  only,  and  not  the  goods.  The  interest  of  each  part- 
ner in  partnership  property  is  altogether  uncertain,  and 
depends  upon  the  demands  upon  the  partnership  and  the 
accounts  of  the  partners  (a).  The  creditor  can  only  take 
the  interest  the  debtor  has  in  the  partnership  effects,  after 
a  settlement  of  the  partnership  accounts,  and  this  interest 
being  extremely  uncertain,  the  officer  would  be  justified  in 
taking  a  large  amount  of  property,  perhaps  the  whole  part- 
nership effects,  \vhere  there  was  reason  to  believe  that  such 
p  irtner  possessed  hut  little  if  any  interest  in  the  property 
of  the  partnership.  The  If  vy  on  partnership  property 
mint  be  «o  u-icert:iin,  that  the  officer  ought  always,  if  he 
can,  to  obtain  the  direction  of  the  creditor.  On  an  execu- 
tion a^unst  -several,  as  partners,  the  officer  may  take  either 
partnership  property  or  the  individual  property  of  any  one 
of  the  defendants,  and  if  there  were  individual  and  company 
good'  sufficient  to  sati-fy  the  execution,  and  he  neglects  to 
take  them,  he  will  be  liable.  So  on  an  execution  against 
several  who  are  not  partners  :  the  officer  may  take  the 
property  of  nther,  or  part  of  one  or  p  irt  of  the  other,  and 
the  proportion  in  whi.;h  the  debt  should  be  paid  is  a  matter 
which  concerns  the  debtors  only.  Where  goods  are  taken 
•n  attachment,  they  must  be  levied  on  within  sixty  days  af 

(a)  2  Conn.  Rep.  514. 


240 

ter  final  judgment,  and  if  receipted",  demand  must  be  made 
of  the  receiptsman  within  that  time.  If  the  demand  is  made 
out  of  his  precincts  it  is  sufficient  (6). 

Where  goods  have  been  attached,  they  cannot  be  levied 
on  by  the  execution,  without  a  previous  demand  of  pay- 
ment thereof  of  the  debtor,  as  in  other  cases.  Where  an 
execution  has  been  levied  by  one  officer  on  goods  which  are 
disposed  of,  and  the  execution  partly  satisfied,  it  may  be 
taken  out  of  his  hand  and  delivered  to  another  officer,  if  di- 
rected to  him,  to  levy  for  the  residue  thereof,  the  same  be- 
ing returned  with  each  of  their  doings  thereon  endorsed. 
But  the  first  officer  could  not  safely  deliver  the  execution 
to  another,  without  the  direction  of  the  creditor.  If  the 
execution  is  returned  partly  satisfied,  a  new  one  may  be 
prayed  out  and  directed  to  a  different  officer.  Where  an 
execution  is  issned  by  the  State  Treasurer  against  the 
inhabitants  of  any  town  for  the  arrears  of  taxes,  the  judg- 
es of  the  county  court  of  the  same  county,  may,  at  the 
request  of  the  sheriff,  depute  some  suitable  indifferent  per- 
son to  leave  the  same,  who  shall  have  the  same  power  as 
sheriffs,  und  such  sheriff  shall  be  responsible  for  his  con- 
duct. 

When  an  execution  is  levied  on  the  stock  or  shares  of 
the  debtor  in  any  bank,  insurance  company,  turnpike  com- 
pany, or  of  other  corporation,  the  officer  must  leave  a 
copy  duly  attested,  with  the  cashier,  secretary  or  clerk, 
with  an  endorsement  that  he  levies  upon  and  takes  such 
stock  or  shares  on  such  execution.  It  is  the  duty  of 
the  cashier,  or  secretary,  or  clerk  of  any  corporation,  on 
enquiry  by  an  officer  to  inform  him  by  a  written  certificate, 
with  his  official  .signature,  of  the  number  of  shares  of  stock 
any  person  po?sesses,  against  whom  such  officer  holds  au 
execution  or  attachment.  After  snrh  levy,  the  shares  ta- 
ken are  to  >>e  posted  and  sold  like  otlu-r  personal  property  ; 
and  thereupon  the  officer  must  give  the  purchaser  a  proper 
instrumer  1  in  writing,  conveying  «uch  shares,  and  leave  a 
copy,  wit's  am  endorsement  of  his  doings  thereon,  with  such 
cashier,  secr-Tiary,  or  clerk,  before  he  returns  the  execu- 
tion, and  nr.nke  return  due  thereof.  The  purchaser  obtain* 
a  title  not  mly  to  the  stock,  hut  to  all  dividends,  profits  and 
interests  which  may  have  accrued  thereon. 

(6)  I  Con.  Rep.  255. 


241 

Vv  here  no  personal  estate  can  be  found,  and  if  the  credit- 
or gives  direction,  it  is  the  duty  of  the  officer  to  levy  the 
execution  on  the  real  estate  of  the  debtor,  holden  in  his 
own  right.  The  creditor  has  his  election  to  take  the  body, 
or  levy  on  the  land  of  the  debtor  ;  but  the  officer  cannot 
safely  levy  on  real  estate  without  the  direction  of  the  cred- 
itor, nor  can  the  del-tor  tender  real  estate  on  the  execution, 
to  avoid  the  imprisonment  of  his  body.  The  direction  of 
the  attorney  of  the  creditor  is  the  same  as  that  of  the  plain- 
tiff himself.  To  constitute  a  levy,  he  must  actually  enter 
upon  the  land.  The  officer  must  cause  the  land  levied  on 
to  be  appraised  by  three  indifferent  freeholders, of  the  town 
where  the  land  lies,  or  if  that  town  be  a  party,  then  of  the 
ni-xt  adjoining  town,  one  of  whom  to  be  appointed  by  the 
creditor,  the  other  by  the  debtor,  and  if  they  cannot  agree 
in  appointing  a  third,  or  if  either  party  neglect  or  refuse  to 
appoint,  the  officer  must  apply  to  any  justice  of  the  peace 
in  the  town,  who  by  law  may  judge  between  the  parties, 
who  shall  appoint  one  or  more  appraisers  as  the  case  may 
require  :  which  appraisers  being  sworn  according  to  law, 
must  make  an  estimate  of  such  real  estate  according  to  its 
true  value,  in  writing,  under  tfeeir  hands,  or  either  two  of 
them,  and  the  same  deliver  to  such  officer,  who  must  set 
out  to  the  creditor  by  metes  and  bounds,  so  much  of  the 
land  as  may  be  sufficient  at  the  appraisal,  to  pay  the  execu- 
tion and  the  lawful  charges,  if  there  is  sufficient ;  if  not,  so 
much  as  there  may  be,  to  be  endorsed  on  the  execution,  in 
part  or  in  whole  satisfaction  thereof.  And  the  officer  must 
cause  such  execution,  with  a  proper  endorsement  of  his  do- 
ings thereon,  to  be  recorded  :\i  length  in  the  records  of 
lands  of  the  town  where  the  estate  lies,  and  must  return 
the  execution,  with  an  endorsement  of  all  his  said  doings 
thereon,  unto  the  officer  of  the  court  whence  it  issued, 
there  to  be  kept  on  file,  which  shall  vest  in  the  creditor  and 
his  heirs  all  the  title  and  interest  the  debtor  had  in  the 
land  (e). 

The  appraisers  must  be  indifferent  freeholders,  and  of 
the  same  town  where  the  land  lies,  unless  such  town  is  a 
party,  or  interested,  then  of  an  adjnii  inir  town.  It  has  been 
decided  by  the  superior  court,  that  where  the  parties  agree 

(e)  £t.  r,7-8. 
21 


242 

on  freeholders  belonging  to  another  town,  or  any  one  ot' 
them,  it  will  be  bad,  because  the  parties  cannot  alter  the 
law  (g).  Any  relationship  between  an  appraiser  and  one 
of  the  parties,  whether  by  blood  or  marriage,  calculated  to 
produce  a  bias,  will  render  the  proceeding  illegal.  The 
relationship  to  either  of  the  parties,  which  disqualifies  a 
judge  from  acting  in  civil  cases,  is  considered  as  a  reasona- 
ble rule  in  case  of  appraisers  (A).  A  nephew,  by  marriage, 
to  one  of  the  parties  has  been  adjudged  not  to  be  an  indif- 
ferent person  within  the  statute  (z).  If  the^principle  ap- 
plicable to  judges  is  to  apply  to  appraisers,  no  person  be- 
tween whom  and  either  of  the  parties  there  is  so  near  a  re- 
lationship, as  father  and  son,  by  nature,  or  marriage,  brother 
and  brother,  uncle  and  nephew,  or  landlord  and  tenant,  can 
be  an  indifferent  freeholder  within  the  meaning  of  the  stat- 
ute. A  person  who  has  directly  or  indirectly  any  pecunia- 
ary  interest  in  the  matter,  cannot  be  an  appraiser.  The 
appointment  of  an  appraiser  by  a  justice  of  the  peace,  is  a 
ministerial  act,  and  not  a  judicial  act,  and  if  an  appraiser  ap- 
pointed by  a  justice  is  not  an  indifferent  freeholder,  the 
fact  m  iy  be  proved  to  impeach  the  title  (a).  To  be  a  free- 
holder, requires  an  estate  in  lands  in  fee  simple  or  for  life, 
either  during  the  grantee's  own  life,  or  that  of  any  other 
person.  An  estate  under  mortgage  is  not  a  le^al  freehold 
in  the  mortgagor.  Where  an  execution  is  issued  in  an  ac- 
tion offoieign  attachment,  without  bonds  being  given  to  re- 
fund, as  required  by  statute,  and  the  execution  is  levied  on 
lands,  it  has  br>en  decided  that  the  levy  is  good  as  to  other 
crCiKt'rs  of  the  debtor,  the  law  requiring  bonds,  being  con- 
•d  a^  intended  for  the  benefit  ofthe  debtor,  not  of  cred- 
ito  s  (A). 

It  has  been  decided  that  where  a  woman  marries  after 
judgment,  and  an  execution  in  her  name  is  levied  on  land, 
the  appointment  of  an  appraiser  by  her  is  legal  («-).  It 
•would  seem,  however,  that  it  should  be  done  with  the  con- 
sent of  her  husband,  as  a  woman  after  marriage  can  do  no 
legal  act,  besides  after  marriage,  the  judgment  was  entire- 
ly "subject  to  the  control  of  the  husband,  and  could  be  dis- 
charged by  him.  It  would  be  the  safest  in  such  cases,  that 

fe\  i  Foot,  196.     (h)  I  Con.  Rep.  295.  (i)  ib.     (a)  1  COB.  Rep.  20ft 
(k  )  1  Ro»t,  176.     (n)  2  Root,  15. 


the  appointment  should  be  made  jointly  by  the  husband  and 
wife.  Where  husband  and  wife  are  plaintiffs  or  defendants, 
the  appointment  may  be  made  by  the  husband  only  ;  but  in 
other  cases,  where  there  are  two  or  more  plaintiffs  or  de- 
fendants, it  would  seem  the  appraiser  should  be  appointed 
by  them  jointly,  and  if  a  part  only  agree  to  make  an  ap- 
pointment, that  it  would  be  necessary  to  decline  such  ap- 
pointment, and  apply  to  a  justice.  If  one  of  several  plain- 
tiffs or  defendants.be  authorized  to  act  for  the  rest,  an  ap- 
pointment by  him  would  be  good.  In  case  of  partners,  one 
plaintiff,  it  would  seem,  might  act  for  all  :  and  likewise  one 
defendant  of  partners,  where  the  execution  was  levied  on 
land  belonging  to  the  partnership,  but  if  levied  on  the  land 
of  an  individual  partner,  the  appraiser,  it  would  appear, 
ought  to  be  appointed  by  him,  and  if  appointed  by  any  oth- 
er of  the  defendants  without  his  concurrence,  it  is  doubtful 
whether  the  levy  would  be  valid. 

Land  which  the  debtor  owns  as  tenant  in  common  with 
others,  cannot  be  set  off  by  metes  and  bounds,  so  as  to  take 
an  undivided  moiety  or  part  «f  a  certain  quantity  of  land  ; 
but  the  whole  tract  belonging  in  common  must  be  levied  on, 
and  the  whole  of  the  debtor's  share  or  interest  therein  ap- 
praised, and  such  part  or  proportion  set  off  as  the  debt  bears 
to  the  debtor's  whole  interest,  where  the  debt  is  less  than 
the  debtor's  share  or  interest  in  the  land.  If  the  execution 
and  charges  equal  or  exceed  what  the  debtor's  share  in  the 
land  is  appraised  at,  the  whole  must  be  set  off,  when  the  cre- 
ditor will  take  the  place  of  the  debtor,  and  be  tenant  in  com- 
mon with  the  owners  of  the  other  shares  of  the  land  ;  but 
if  the  debt  is  less,  he  will  be  tenant  in  common  with  the 
debtor  and  the  other  tenants  in  common,  according  to  the 
proportion  he  has  acquired.  If  A  and  B  are  tenants  in  com- 
mon, in  equal  shares,  and  an  execution  is  levied  on  A's 
share,  of  the  amount  of  one  hundred  dollars,  and  his  share 
is  appraised  at  two  hundred  dollars,  one  half  of  A's  interest 
must  be  set  off  to  the  creditor,  so  that  the  creditor  will  pos- 
sess one  undivided  fourth  part  of  the  land,  A  one  undivided 
fourth  part,  and  B  one  undivided  half  part  ;  and  the  credit- 
or or  any  one  of  the  tenants  in  common,  can  procure  a  divi- 
sion accordingly.  In  the  ruse  supposed,  the  mode  would 
bo,  to  *ot  off  such  proportion  of  A's  share  or  interest,  the 
whole  being  estimated  at  two  hundred  dollars,  as  the  one 


844 

hundred  dollars,  the;  amount  of  the  execution  and  costs, 
ieaves  two  hundred  dollars,  which  would  give  him  one  half 
of  A's  share.  If  instead  of  one  undivided  half  of  the  inter- 
est of  A  in  the  whole  tract,  his  entire  interest  should  be  set 
off  in  one  half  of  the  lot,  B,  the  other  tenant  in  common, 
would  be  subjected  to  have  his  share  partitioned  and  apart- 
ed  in  two  separate  pieces,  whereas  he  has  a  right  to  have 
his  interest  as  tenant  in  common  in  the  whole  tract,  parti- 
tioned and  aoarted  to  him  in  one  piece  (a). 

Where  the  debtor  is  tenant  in  common  with  others,  in 

unequal  shares,  owning  more  or  less  than  an  equal  share. 

his  interest,  or  share,  must  be  appraised,  and  such  propor- 

ereofset  off  as  the  debt  bears  to  his  whole  interest, 

me  as  when  he  is  tenant  in  common  in  equal  shares. 

icn  there  are  two  or  more  separate  tracts   of  land 

,ed  by  the  debtor  as  tenant  in  common  with  others,  each 

:'  Id  by  a  distinct  title,   an  execution  cannot  be  levied  on 

ne  whole,  and  a  part  or  proportion  of  the  debtor's  interest 

;n  each  set  off,  but  the  whole  of  the  debtor's  right  must  be 

taken  in  one  tract,  before  any  portion  of  his  interest  can  be 

taken  in  another  (6). 

Where  an  execution  is  levied  on  land,  encumbered  with  a 
mortgage,  it  cannot  be  set  off  by  metes  and  bounds,  but  the 
whole  or  such  proportion  of  the  debtor's  interest  therein, 
as  the  execution  and  charges  bear  to  his  whole  interest, 
must  be  set  off  in  satisfaction  of  the  execution.  The  ap- 
praisers must  estimate  the  value  of  the  debtor's  interest 
or  equity  of  redemption,  which  can  be  done  by  estimating 
the  value  of  the  land,  and  deducting  therefrom  the  amount 
of  the  mortgage  debt ;  and  the  officer  must  s<  toff  such  pro- 
portion thereof  as  the  execution  and  charges  bears  to  the 
whole  of  the  debtor's  interest,  in  the  same  manner  as  where 
the  debtor  owns  land  as  tenant  in  common  (c). 

Terms  for  years  may  be  levied  on  and  appraised  off  as 
real  estate,  the  whole  or  a  part  being  set  off  to  the  credit- 
or by  metes  and  bounds  as  in  other  cases,  for  the  term  own- 
ed by  the  debtor  (d).  So,  also,  must  the  interest  a  man 
has  in  the  lands  of  his  wife.  The  estate  of  the  debtor, 
whether  for  life  or  years,  should  be  set  off  as  such,  yet  if 
set  off  as  a  fee  simple,  it  will  give  the  creditor  all  the  title 

(a)  2  Con.  Rep,  243.      (6)  ib.      (c)  2  Day,  317.       (d]  2  Root,  16 


245 

the  debtor  had  therein  (ft).  Where  two  creditors  attached 
the  same  land  at  the  same  instant,  and  had  their  executions 
levied  in  due  time,  it  was  held  that  they  took  uioities  of  the 
land  0). 

When  lands  have  been  attached,  the  execution  must  be 
levied,  the  proceedings  completed,  returned  and  recorded 
within  the  four  months  after  final  judgment.  If  the  levy 
is  made  within  that  time,  but  the  proceedings  not  comple- 
ted, the  title  will  not  be  good  in  case  there  was  a  subse- 
quent attachment  on  the  land.  But  if  the  lands  were  encum- 
bered by  a  prior  attachment,  the  execution  must  be  levied 
in  four  months  after  such  encumbrance  is  removed.  The 
officer  ought  to  state  in  his  endorsement,  that  he  made  de- 
mand of  the  debtor  of  the  execution,  and  that  he  cquld  find 
no  personal  estate  whereon  to  levy  ;  but  it  has  been  deci- 
ded that  this  was  not  absolutely  necessary,  where  il  ap- 
peared that  the  debtor  appointed  one  of  the  appraisers, 
from  which  it  might  be  presumed  the  demand  had  been 
made  or  waived  by  the  debtor,  and  that  no  personal  estate  was 
tendered,  or  could  be  found  (g).  An  officer  ought  to  serve 
executions  in  the  order  of  time  in  which  they  are  received, 
and  if  two  are  put  into  his  hands  on  the  same  day,  he  should 
levy  that  first  which  he  received  first  ;  but  if  he  levy  the 
one  he  received  last,  first,  the  proceedings  will  be  legal,  but 
he  will  be  liable  to  the  creditor  in  the  first  execution,  in 
case  the  same  is  not  satisfied,  to  the  amount  of  the  goods 
taken  on  the  second  execution,  and  which  ought  to  have 
been  taken  on  his  (a). 

If  an  execution  is  legal  on  the  face  of  it,  the  officer  is 
bound  to  execute  it  (c).  An  officer  is  bound  to  serve  and 
return  an  execution  within  the  sixty  days,  yet  if  he  collect 
and  pay  over  the  money  to  the  creditor,  he  is  not  liable  if 
he  does  not  return  the  writ.  So  if  by  the  direction  of  the  cred- 
itor, he  levy  on  land,  and  return  the  execution  before  an 
action  is  brought  against  him,  so  that  the  title  become«  com- 
plete, he  is  not  liable,  although  the  return  was  not  m.ide 
until  after  the  expiration  of  the  sixty  days  (d).  But  if  the 
land  should  be  levied  or  attached  by  any  other  creditor, 
and  the  title  of  the  first  creditor  defeated  in  consequence  of 

{h}  1  Con.  Rep.  470.       (e\  13  Mass.  T.  R.  527.      (g)  1  Root,  241. 
fa)  1  Ld.  Raym.  252.     (e)  Kirby,  180.     (d)  Swf.  Dig.  795. 


246 

the  officer's  not  making  return  in  season,  he  would  be  lia- 
ble to  the  creditor  notwithstanding  he  had  returned  the  ex- 
execution  before  an  action  was  brought  against  him. 

An  officer  cannot  return  a  rescue,  or,  that  he  cannot  do 
execution  on  final  process,  on  a  writ  of  execution,  as  he  is 
bound  to  bike  with  him  the  power  of  the  county  if  requir- 
ed. The  officer  must  endorse  his  fees  on  the  execution, 
specifying  the  items,  and  must  deliver  to  the  debtor,  on  de- 
mand, and  without  reward,  a  bill  of  his  fees,  under  his 
hand,  specifying  the  items,  with  the  name  of  the  creditor, 
the  date  and  amount  of  the  execution,  and  the  court  from 
whence  it  issued  ;  and  on  his  neglect  or  refusal  so  to  do, 
he  forfeits  three-fold  the  amount  of  his  fees.  If  he  charges 
or  receives  more  than  lawful  fees,  he  forfeits  three-fold 
the  amount  of  such  excess,  to  be  recovered  by  an  action 
on  the  statute.  No  officer  is  entitled  to  any  more  fees 
for  travel  on  an  execution,  than  the  actual  travel  to  serve 
and  return  the  same.  If  an  officer,  for  the  security  of  the 
p:;\ment  of  an  execution,  take  more  than  one  bond,  note, 
receipt,  or  other  instrument,  directly  to  himself,  or  to  any 
other  person  for  his  use,  every  such  instrument  so  taken, 
is  void.  Where  an  officer  delivers  goods,  taken  on  execu- 
tion, into  the  bauds  oi*  r.ny  person,  and  takes  his  receipt 
for  the  re-delivery  of  the  same,  and  such  person  fails  to 
perform,  in  an  action  brought  by  the  officer  on  such  re- 
ceipt there  can  be  no  appeal.  Where  a  sheriff  has  recov- 
ered money  on  an  execution  and  neglects  to  pay  the  same 
on  demand,  he  is  liable  to  pay  to  the  person  entitled  to  the 
money,  two  per  cent  a  month  from  the  time  of  such  de- 
mand until  the  same  be  paid. 

If  any  person  shall  refuse  to  assist  a  sheriff,  or  other  offi- 
cer, when  necessary,  in  the  execution  of  his  office,  on  being 
commanded  by  such  officer,  he  forfeits  a  sum  not  exceed- 
ing thirty-four  dollars  to  the  treasury  of  the  county. 

1.  Of  the  Service  of  Executions  issued  in  Actions  of  Foreign 

Attachment. 

The  judgment  rendered  in  an  action  of  foreign  attach- 
ment, is  a  judgment  against  the  goods  and  effects  of  the 
defendant  in  the  hands  of  his  attorney,  agent,  factor  or 
trustee,  or  the  debt  of  his  debtor  ;  and  the  judgment  is  a 
Hen  thereon,  the  same  being  liable  and  holden  to  satisfy 


such  judgment,  or  such  part  thereof,  as  they  may  be  sutl, 
to   pay.     Before  taking  out  executions,  except  on  ju. la- 
ments  before  justices  of  the  peace,  the  plaintiff  mi:-- 
ecute  a  bond,  with  surety  in  double  the  amount   of  the 
judgment,  to  refund  the  same,  or  such  part  thereof,  as  on 
a   petition   for  a  new  trial  or  writ  of  error,  it  may  be  de- 
cided the  plaintiff  ought  not  to  recover. 

The  duty  of  the  officer  in  serving  an  execution  issued 
on  a  judgment  rendered  in  an  action  of  foreign  attachment, 
is  not  different  from  what  it  is  in  any  other  case,  unl<» 
the  plaintiff  gives  directions.  But  if  the  plaintiff  gives  him 
such  directions,he  must  make  demand  of  the  attoVnoy,  agent, 
factor,  or  trustee,  with  whom  a  copy  of  tne  attachment  was 
left,  of  the  goods  and  effects  of  the  defendant  in  his  hand?, 
whose  duty  it  is  to  expose  the  same  to  be  taken  on  the  ex- 
ecution ;  and  where  a  copy  of  the  attachment  WHS  left  with 
a  debtor  of  the  defendant,  to  make  demand  of  him  of  the 
debt  or  debts  due  from  him  to  the  defendant,  and  it  is  the 
duty  of  such  trustee  or  agent  to  expose  such  goods,  and  of 
such  debtor  to  pay  such  debt  to  the  officer,  or  such  part 
thereof,  as  will  satisfy  the  execution  and  costs,  if  the  said 
goods  or  debt  exceed  the  same.  The  trustee  or  debtor, 
with  whom  the  copy  was  left,  is  called  the  garnishee.  If 
he  expose  goods  or  effects  of  the  defendant,  the  officer 
must  levy  his  execution  on  them  and  dispose  of  them,  as 
in  other  cases  ;  if  the  debtor  of  the  defendant  pay  the  offi- 
cer the  debt  he  owes  the  defendant,  he  must  endorse  the 
same  on  the  execution,  and  make  return.  If  the  trustee 
or  debtor  of  the  defendant,  on  *uch  demand, 'refuse  to  ex- 
pose the  effects  of  the  defendant  in  his  hands  or  pay  the 
debt  he  owes  him,  the  officer  inust  make  a  special  return 
of  such  demand  and  refusal  of  the  garnishee,  and  must  al- 
so make  a  return  of  non  est  invent  is  as  to  the  defendant. 
This  enables  the  plaintiff  to  bring  a  srire  fmias  against  the 
garnishee,  upon  which  he  will  be  subjected  to  pay  the 
plaintiff's  judgment  himself,  if  the  plaintiff  can  prove,  he 
had  effects  of,  or  was  indebted  to  the  original  defendant,  or 
such  part  thereof,  as  is  equal  to  the  value  of  the  property 
in  his  hands.  The  garnishee  is  entitled  to  his  oath  to  dis- 
ch  irse  himself;  or  to  testify  that  he  had  no  effects  of  the 
defendant  in  his  possession,  or  was  not  indebted  to  him. 
The  demand  upon  the  garnishee,  must  be  made  within  sixty 


248 

days  after  judgment,  and  return  made  within  that  time,  or 
the  garnishee  will  be  discharged.  If  the  garnishee  does 
not  expose  goods  or  effects  of  the  defendant  or  pay  the  ex- 
ecution, it  is  the  duty  of  the  officer  to  take  other  goods  of 
the  defendant,  il  he  can  find  any,  or  the  body  of  the  de- 
fendant, if  it  can  be  found,  unless  directed  otherwise  by 
the  plaintiff.  So  if  the  effects  exposed  hy  the  garnishee 
are  sufficient  to  satisfy  part  of  the  execution  only,  the  offi- 
cer must  take  other  goods  of  the  defendant,  or  his  body, 
if  he  can  find  either,  and  if  not,  must  return  the  execution 
non  est  inventus  as  to  the  part  unsatisfied.  If  there  are  sev- 
eral garnishees,  demand  must  be  made  of  each. 

3.  Of  Serving  Executions  where   an  Executor  or  Adminis- 
trator is  Sued,  4'C. 

A  judgment  against  an  administrator  is  only  against  the 
goods  and  effects  of  the  deceased  in  his  hands.  Tie 
officer  must  make  demand  of  the  administrator  or  executor 
of  payment  of  the  execution,  and  of  goods  and  effects  6f 
the  deceased  to  satisfy  the  same  ;  and  if  he  neglect  to  pay 
the  same  or  turn  out  goods,  he  must  make  return  that  he 
could  find  no  goods  of  the  deceased,  and  of  the  demand 
made  upon  the  administrator,  and  of  his  refusal  to  pay  the 
execution  or  expose  goods  of  the  deceased,  whereby  the 
same  is  returned  unsatisfied.  If  goods  of  the  deceased  are 
turned  out  by  the  administrator,  or  found,  t^ev  may  be 
taken  and  sold  as  in  other  cases,  but  the  ;id  mni*trator's 
own  property  cannot  be  taken. 

When  a  judgment  is  rendered  against  a  corporation,  the 
execution  is  issued  against  the  goods  and  estate  of  such 
corporation  only,  and  the  officer  must  make  search  for,  and 
if  he  finds  estate,  levy  upon,  and  dispose  of  the  same,  as 
in  other  cases.  If  he  can  find  no  estate  he  will  return  the 
execution  non  est  inventus  as  to  goods  and  estate  of  such 
corporation.  Where  the  estate  of  a  corporation  is  not  vis- 
ible or  tangible,  so  that  it  can  be  levied  on,  application  may 
be  made  to  a  court  of  chancery,  to  enforce  payment  of  the 
judgment ;  but  if  there  is  no  visible  or  tangible  property, 
that  can  be  taken,  the  officer  will  be  justified  in  his  return, 
that  he  can  find  no  goods. 

In  judgment  against  towns  and  societies,  the  execution 
issues  against  the  goods  and  estate  of  the  individual  mem- 


bers  thereof,  and  not  against  the  property  of  such  corpo- 
rations.    The  officer  may  make  demand  of  the  select-men  or 

the  committee  of  societies,  and  then,  or  probably  without 
such  demand,  may  levy  the  execution  on  the  property  of 
any  inhabitant  of  such  town  or  society,  and  the  person 
whose  property  is  taken  has  his  redress  against  such  cor- 
poration. 

4.  In  an  action  of  ejectment  or  disseisin,  the  judgment 
is  that  the  plaintiff  recover  the  seisin  and  possession  of  the 
premises,  and  his  costs,  and  execution  is  granted  accord- 
ingly. It  is  the  duty  of  the  officer  to  turn  the  defendant 
out  of  the  possession  of  the  premises  described  in  the 
writ,  and  put  the  plaintiff"  into  actual  possession  of  the  same, 
and  make  return  accordingly.  He  may,  if  necessary,  break 
down  doors,  and  turn  the  party  out  of  possession  by  actual 
force. 

Where,  in  disposing  of  goods  taken  on  execution,  the 
person  who  bids  the  highest  is  unable  to  pay,  the  officer 
may  offer  them  to  the  next  highest  bidder,  and  if  he  de- 
clines to  receive  them,  or  is  also  unable  to  pay,  he  may  put 
them  up  for  sale  again.  It  is  his  duty  to  sell  for  money, 
and  if  he  gives  a  credit,  he  will  be  liable  to  the  creditor, 
for  the  amount  of  the  sale,  although  the  snine  may  never 
be  paid.  Where  there  are  a  number  of  articles,  they 
should  be  sold  separately,  where  they  are  distinct  in  their 
nature  and  use,  and  not  in  gross  or  by  the  lump,  as  that 
might  occasion  a  greater  sacrifice  to  the  debtor  (a).  But 
when  the  officer  acts  honestly  and  fairly,  and  sells  the 
property  in  the  way  that  appears  most  advantageous,  he 
will  generally  be  justified.  He  is  the  agent  of  the,  debtor 
as  well  as  the  creditor,  and  must  Discharge  his  trust  in 
good  faith  to  both.  If  an  officer  take  a  bond  of  the  debt- 
or, or  other  security,  to  the  amount  of  an  execution  it  i- 
a  payment  thereof,  and  such  execution  cannot  afterwards 
be  lawfully  enforced  against  such  debtor  (6).  It  has  been 
decided,  that  if  an  officer,  holding  an  execution,  pay  the 
amount  thereof  to  the  creditor  from  his  own  money,  that  it 
is  a  satisfaction  of  the  execution,  and  that  such  officer  Can- 
not  reimburse  himself  by  enforcing  it  against  the  defend- 
ant (c).  It  is  a  good  return  on  an  execution,  for  an  officer 

(a)  I  Bin.  61.         (6)  7  John.  429.  (c)  ib.  12'). 


250 

to  state  that  he  arrested  the  body  of  the  debtor,  and  that 
he  died,  whereby  he  could  not  commit  him  to  prison  ;  or 
that  from  sickness  he  could  not  be  committed  to  gaol.  It 
has  been  decided  in  the  State  of  New-York,  that  an  officer 
cannot  justify  an  escape,  by  shewing  that  the  attorney  of 
the  plaintiff  permitted  the  debtor  to  go  at  large  or  be  dis- 
charged ;  that  an  attorney  has  no  authority  to  discharge  the 
debtor  from  arrest  on  execution,  without  payment  of  the 
debt,  he  being  only  authorized  to  receive  payment  and  dis- 
charge the  execution  in  consideration  thereof  (/i).  An  of- 
ficer cannot  be  permitted  to  falsify  his  return,  although  he 
may  be  permitted  to  correct  a  mistake  or  omission.  If  he 
return  that  he  has  collected  on  an  execution,  the  whole  or 
a  part  thereof,  he  will  be  liable  to  the  creditor  for  the 
amount,  and  will  not  be  allowed  to  falsify  his  return  by 
proving  that  he  did  not  in  fact  receive  the  money  accord- 
ing to  his  endorsement.  But  the  creditor,  or  other  per- 
son entrusted  may  disprove  an  officer's  return  ;  it  is  only 
prima  facie  evidence  of  the  facts  contained  thereon. 

An  officer  ought  in  all  cases,  in  order  to  be  justified, 
make  a  return  which  is  both  sufficient  and  true,  and  if  it  is 
either  insufficient  or  false,  he  will  be  liable.  He  must  fol- 
low the  direction  of  the  writ  and  execute  it  according  to 
law.  An  officer  may  justify  under  an  execution  which  he 
never  returned  (t).  Recaption  on  fresh  pursuit,  or  before 
action  brought,  will  justify  an  escape  on  execution  as  well 
as  on  mesne  process  ;  but  not  if  the  escape  is  voluntary 
on  the  part  of  the  officer. 

Where  good*  seized  by  an  officer  on  execution  or  attach- 
ment, are  unlawfully  taken  out  of  his  possession,  he  may 
maintain  trespass  or  trover  for  the  injury. 

No  action  can  be  brought  against  a  constable,  ,-heriff,  or 
deputy  sheriff,  for  any  neglect  or  default  in  his  office  and 
duty,  but  within  two  years  next  after  the  right  of  action 
shall  accrue.  But  an  action  of  assumpsit  maybe  maintain- 
ed against  such  officer,  for  money  collected  on  an  execu- 
tion, and  not  paid  to  the  creditor  ;  or  where  goods  are 
sold  and  there  is  an  overplus,  which  is  not  refunded  to  the 
debtor,  at  any  time  within  six  years  after  the  receipt  of 
the  money. 

(h)  8  John  361.  (t)  ib.  52. 


251 
CHAPTER  VI. 

FORMS    ON    FINAL    PROCESS,    OR    EXECUTIONS. 

1.    Of  Retitrns  on  Executions  in  Common  Form. 

Where  the  execution  is  paid  by  the  debtor. 
H         county  ss.  H         day  of        A.  D.        ;  then  I  re- 
ceived of  A.  B.   the  within  debtor,  the  sum  of        dollars, 
in  full  for  the  damages  and  costs  of  this  execution,  and  the 
sum  of        for  my  fees  thereon. 

[Items  of  fees.]  C.  D.,  constable. 

Where  goods  are  levied  on  and  sold. 
H  county  ss.  H  day  of  A.  D.  ;  By  virtue 
hereof  on  the  day  of  ,  I  made  demand  of  the  with- 
in named  A.  B.  at  his  usual  place  of  abode,  [or  at  a  place 
called  ,  in  said  town  of  ]  ofthr  several  sums  contained 
in  this  execution,  and  of  my  fers  thereon,  which  he  then  and 
there  neglected  to  pay  ;  and  afterwards  on  the  day  of  , 
at  said  ,  1  levied  this  execution  en  one  bay  horse,  and 

one  pair  of  working  oxen,  the  property  of  the  within  debt- 
or, and  took  the  same  into  my  possession  ;  and  thereupon 
drew  an  account  of  the  particulars  of  said  propertv,  and 
posted  up  the  same  on  the  sign-post,  in  the  society  of 
in  said  town  of  ,  within  which  society  said  property 
WHS  taken,  and  with  the  same  I  also  set  up  a  notice  that 
said  property  would  be  sold  at  the  plac^  where  posted,  at 
the  end  of  twenty  days,  at  public  vendue,  specifying  the 
day  when  the  sale  would  take  place,  and  the  hour  thereof; 
and  the  s.iid  A.  B.  having  failed  to  pay  said  execution  and 
charges,  on  the  said  specified  day  I  sold,  after  causing:  a 
dium  to  be  beat  at  said  sign  post,  at  public  vendue,  said 
horse,  the  same  having  been  conveyed  to  said  post,  to  J.  S. 
for  the  sum  of  fifty  dollars,  he  being  the  highest  bidder 
therefor  ;  and  I  also  sold  said  oxen  to  O.  P.  for  sixty  dol- 
lars, he  being  the  highest  bidder  thfri'for,  making  in  the 
whole,  the  sum  of  one  hundred  and  ten  dollars,  from  which 
I  deducted  the  expenses  and  my  fees,  amounting  to  ten 
dollars,  and  of  the  residue  applied  in  satisfaction  of  this 
execution  the  sum  of  ninety  dollars,  being  the  amount  doe 
thereon,  and  the  remaining  ten  dollars  I  returned  to  the 


25:2 

within  debtor,  and  also  paid  to  the  creditor  the  contents  ot 
this  execution  received  by  me  as  aforesaid. 

[Items  of  fees.]  C.  D.,  Constable. 

[If  the  property  is  turned  out  by  the  creditor  it  is  al- 
ways safest  for  the  officer  so  to  sUtte  in  his  return  ;  and 
where  property  is  taken  which  is  exempt  by  law,  the  same 
being  turned  out  by  the  debtor,  its  being  so  turned  out 
should  be  stated  in  the  return.] 

Where  a  second  levy  and  sale  of  goods  are  made. 
By  virtue  hereof  on  the  day  of  A.  D.  at  , 
I  made  demand  of  A.  B.  the  within  dtbior  of  the  debt  or 
sum  due  hereon,  which  he  neglecting  to  pay,  I  made  dil- 
igent search  for  goods  of  the  said  debtor,  and  on  the 
day  of  ,  1  found  and  levied  on  a  piece  of  flannel  cloth 
containing  twenty  yards,  the  said  debtor  then  having  left 
in  his  posspssion  wool  and  cloth  made  therefrom,  of  a  quan- 
tity exceeding  twenty  pound?,  the  said  piece  of  cloth  he- 
in£  all  the  property  of  the  said  debtor  1  could  then  find, 
li  >ble  to  be  taken  ;  and  thereupon  I  drew  an  account  of 
sa.d  properly  and  posted  the  same  &c.  [the  same  as  the 
preceding]  and  at  the  time  and  place  specified  1  sold  said 
property,  at  vendue,  having  first  caused  a  drum  to  be 
b -a  en,  to  R.  R.  for  fifty  cents  a  yard,  amounting  to  ten  dol- 
lars. :md  applied  six  dollars  thereof  in  part  satisfaction  of  this 
execution,  two  being  required  to  pay  iny  fees  and  expenses, 
leaving  then  due  on  said  execution  the  sum  of  ten  dollars  ; 
and  ;ifterw:irds  on  the  day  of  said  execution  then 

being  in  life,  I  levied  the  same  on  ten  bushels  of  rye,  and 
ten  bushels  of  Indian  corn,  the  oropertv  of  the  debtor 
herein,  he  then  having  in  his  possession  more  than  ten 
bushels  of  each,  which  I  did  not  take,  and  thereupon  I 
drew  an  account  of  the  property  Vist  taken,  and  posted  up 
the  same  on  the  si^n  post  k.c.  [the  same  as  in  the  first] 
and  on  the  said  sprr.fk'd  day,  1  .-old  it  public  vendue,  at 
said  sign  post,  hiving  first  caused  a  drum  to  be  beaten, 
said  rve  to  L.  M.  for  seventy  cents  per  bushel,  he  being 
the  highest  bidder  therefor,  and  said  corn  to  J.  S.  for 
fif'y  cents  per  bushel,  he  being  the  highest  bidder  there- 
for :  the  whole  amounting  to  the  sum  of  twelve  doll.ir->, 
of  whirh  I  applied  tPn  do'l.irs  to  satisfy  the  sum  remr-ining 
due  on  said  execution,  and  my  fees  and  charges  were  onr 


253 

viollar  and  fifty  cents,  leaving  an  overplus  of  fifty  cents, 
which  I  returned  to  the  said  creditor,  and  paid  the  con 
tents  of  said  execution,  due  the  creditor  herein. 

Where  goods  in  part  satisfaction  are  taken  and  the  body 

arrested  and  committed. 

By  virtue  hereof  &c.  [state  the  taking  and  sale  of  the 
goods  the  same  as  the  preceding]  and  I  continued  to  make 
diligent  search  for  more  goods  of  the  said  debtor,  whereon 
to  levy  to  satisfy  the  residue  of  this  execution  until  the 
day  of  ,  but  I  could  find  none  within  my  precincts, 
and  for  want  thereof,  I  by  virtue  of  this  writ,  arrested  the 
body  of  the  within  debtor,  and  him  committed  into  the  cus- 
tody of  the  keeper  of  the  gaol  in  H  ,  in  the  county  of 
H  ,  to  be  kept  by  him  within  said  prison,  and  there- 

upon delivered  to  said  keeper  a  copy  of  this  execution, 
and  of  my  proceedings  thereon  endorsed,  and  duly  attested 
the  same. 

Where  the  debtor  is  out  of  the  precincts  of  the  officer  and 

insufficient  property  only  can  be  found. 
By  virtue  hereof  I  made  search  for  A.  B.  the  within 
debtor  to  make  demand  of  the  debt  or  sum  due  hereon, 
but  could  not  find  him  in  my  precincts.  I  then  made  search 
for  goods  of  the  said  debtor  whereon  to  levy,  and  continu- 
ed my  inquiry  until  the  day  of  ,  when  I  found  and 
levied  this  execution  on  a  one-horse  waggon,  the  prop- 
erty of  the  within  debtor,  being  all  the  goods  or  estate  I 
could  find  within  my  precincts,  and  thereupon  drew  an  ac- 
count &,c.  [the  same  as  in  the  first  form]  and  on  the  spe- 
cified day  I  sold  at  said  sign-post,  at  public  veiidue,  having 
first  caused  the  drum  to  be  beaten,  said  waggon  to  J.  S.  for 
20  dollars,  he  being  the  highest  bidder  therefor,  of  which  I 
applied  eighteen  dollars  in  part  payment  of  this  execution, 
the  charges  and  my  fees  being  two  dollars,  leaving  due  on 
said  execution  twenty  dollars  ;  and  I  continued  to  search 
for  more  goods  of  the  said  debtor,  to  satisfy  the  residue 
of  said  execution,  until  the  day  of  ,  but  could  find 
none  ;  neither  could  find  the  body  of  the  debtor,  he  being 
out  of  my  precincts  when  said  execution  was  put  into  my 
hands,  and  has  not  come  into  the  same,  whereby  he  could 
22 


254 

be  taken,  and  on  the  said  day  of  ,  I  returned  said 
execution,  partly  unsatisfied,  as  aforesaid. 

[An  officer  cannot  be  justified  in  taking  insufficient  prop- 
erty, except  where  the  body  could  not  be  taken,  during 
the  life  of  the  execution,  then  it  is  his  duty  to  do  it.] 

Where  bank  or  other  stock  is  taken  and  sold. 
By  virtue  hereof  I  made  demand  of  A.  B.  the  within 
debtor,  at  his  usual  place  of  abode  of  the  sum  due  hereon, 
and  my  fees,  on  the         day  of         which  he  neglected  to 
pay,  and  afterwards  on  the  day  of          ,  I  levied  this 

execution  on  four  shares  of  stock  in  the  Phoenix  bank,  be- 
ing  a  body  corporate,  the  property  of  said  debtor,  by  leav- 
ing with  G.  B.  cashier  of  said  bank,  an  attested  copy  here- 
of, and  of  the  endorsement  of  my  doings  hereon,  and  on 
the  same  day  I  drew  an  account  of  said  property,  and 
posted  up  the  same  on  the  sign-post  in  the  society  of 
within  which  the  said  levy  was  made  &c.  and  on  the  spe- 
cified day  I  sold  at  public  vendue,  at  said  sign-post,  having 
first  caused  a  drum  to  be  beat,  two  of  said  shares  of  stock, 
with  the  dividends  and  profits  thereon  accrued,  to  L.  M. 
for  one  hundred  and  ten  dollars  each,  and  the  other  two 
of  said  shares  to  R.  R.  at  the  same  sum,  the  said  L.  M. 
and  R.  R.  being  the  highest  bidders  therefor,  and  said 
.shares  having  been  offered  for  sale  severally,  and  thereupon 
I  executed  to  the  said  L.  M.  and  R.  R.  proper  instruments 
in  writing,  conveying  to  them  said  bank  shares  ;  and  of  the 
~nm  received  for  said  shares  of  stock,  being  four  hundred 
and  forty  dollars,  I  deducted  five  dollars  the  amount  of  my 
foes  and  charges,  and  applied  four  hundred  in  satisfaction 
of  said  execution  being  the  amount  due  thereon,  &  the  over- 
plus thirty-five  dollars  I  returned  to  the  said  debtor,  and 
I  also  paid  the  contents  of  said  execution,  received  as  afore- 
said, to  said  creditor  ;  and  I  also  left  with  the  cashier  of 
said  bank  a  true  and  attested  copy  of  this  execution .  and 
of  my  endorsement  thereon. 

The  endorsement  on  the  copy. 

H         county  ss.  H  day  of  A.  D.        ;  then  by 

virtue  hereof  1  levied  on  four  shares  of  stock  in  the  PhiE- 
nix  bank,  belonging  to  the  within  debtor,  to  satisfy  this  ex- 
pcution,  and  my  foes  thereon. 

A.  B.,  Constable. 


255 

The  above  and  within  is  a  true  copy  of  the  original  ex- 
ecution, and  of  the  endorsement  of  my  doings  thereon. 
Attest.         A.  B.,  Constable. 

[The  copy  to  be  left  with  the  cashier  after  the  sale, 
must  contain  a  copy  of  the  execution  and  a  copy  of  the  en- 
dorsement made  thereon,  stating  the  sale  of  the  property, 
and  must  be  duly  attested.] 

Where  corn  or  grain  growing  is  levied  on. 
By  virtue  hereof  on  the  day  ef  at  ,1  made 
demand  of  the  within  debtor  of  the  debt  or  sum  due  here- 
on,  and  of  my  fees,  which  he  then  and  there  neglected  to 
pay,  whereupon  by  direction  of  the  creditor,  I  levied  said 
execution  on  a  certain  quantity  of  growing  corn,  and  all 
the  right,  title  and  interest  of  the  defendant  had  therein, 
standing  and  growing  on  a  certain  piece  of  land,  situated 
in  and  bounded  as  follows  :  containing  about  ten 

acres  of  land,  the  same  belonging  to  O.  P.,  the  said  debtor 
having  leased  or  rented  the  said  piece  of  land,  and  owned 
the  said  grain  standing  thereon,  [or  the  said  debtor  having 
cultivated  said  land  on  shares,  and  being  entitled  to  the 
one  half  part  of  said  crop]  and  thereupon  I  drew  an  ac- 
count in  writing,  of  the  particulars  of  said  corn,  and  post- 
ed up  the  same  on  the  sign-post  in  the  society  of  ,  with- 
in which  the  same  was  taken,  and  with  such  account  I  set 
up  a  notice  that  said  corn  would  be  sold  at  the  place  where 
posted,  at  the  expiration  of  twenty  days,  the  day  of  sale 
being  specified,  at  public  vendue  as  the  law  directs  ;  and 
on  said  specified  day,  the  said  debtor  not  having  paid  said 
execution,  I  sold  said  corn,  by  description,  according  to 
said  notice,  having  first  caused  a  drum  to  be  beaten,  as 
follows,  viz.  the  part  thereof  growing  on  four  acres  of 
said  land,  to  R.  R.  for  twenty  dollars,  together  with  all  the 
right  and  privilege  of  the  said  debtor  to  cultivate  and  grow 
the  same  on  said  land,  he  being  the  highest  bidder  there- 
for ;  and  the  proportion  thereof  standing  on  six  acres  of 
said  land  to  J.  S.  for  thirty-six  dollars,  he  being  the  high- 
est bidder  therefor,  and  all  the  right  of  the  said  debtor  to 
grow  the  same  on  said  land,  [or  where  the  debtor  owned 
but  a  share  of  the  grain  :]  I  sold  all  the  right  and  interest 
of  the  said  debtor  in  said  corn,  being  the  one  half  part  there-' 
of,  to  R.  R.,  for  the  sum  of  ,  he  being  the  highest  bid- 


256 

Jer  therefor]  and  thereupon  I  gave  said  purchasers  a  bill 
of  sale  of  said  corn  ;  and  of  the  said  money  received 
therefor,  amounting  to  the  sum  of  fifty-six  dollars,  I  de- 
ducted five  dollars  for  the  fees  and  charges,  and  the  resi- 
due applied  &c.  (same  as  in  other  cases.) 

Where  the  grain  after  (he  levy  is  harvested  and  sold. 
[State  the  levy  by  posting  &c.  as  in  the  last,  then  say  :] 
tnd  the  said  creditor  neglecting  to  pay  said  debt,  and  for 
the  more  advantageous  sale  of  said  grain,  I  caused  the  same 
to  be  harvested  and  removed  from  said  land  ;  and  on  said 
specified  day  said  execution  being  unsatisfied,  I  sold  said 
strain  at  said  sign-post,  having  caused  the  same  to  be  con- 
veyed there,  at  public  vendue,  after  the  beat  of  a  drum, 
to  R.  R.  for  the  sum  of  he  being  the  highest  bidder  : 

[or  in  case  of  rye  or  other  grain,  which  is  too  bulky  and 
expensive  to  be  removed  to  the  post  ]  I  caused  said  rye 
or  grain  to  be  harvested  and  removed  from  said  land  for 
the  security  and  better  sale  of  the  same,  and  on  said  spe- 
cified day,  I  sold  the  same,  at  said  sign- post,  at  public  ven- 
due,  by  description  and  sample,  said  grain  being  then  in 
sheaf,  and  so  bulky  that  it  could  not  be  removed  without 
great  and  unnecessary  expense,  a  part  thereof,  consisting 
of  twenty  shocks  to  A.  B.  for  twelve  dollars,  he  being  the 
highest  bidder,  and  the  residue  thereof,  containing  fifteen 
shocks,  to  C.  D.  for  eight  dollars,  he  being  the  highest 
bidder  therefor  &c. 

Where  partnersJtip  goods  are  taken  for  the   separate  debt 

of  one  of  the  partners, 

[State  the  demand  as  in  other  cases  :]  and  afterwards  on 
the  day  of  ,  by  virtue  hereof  and  by  the  direction 
of  the  creditor  I  levied  upon  all  the  right  and  interest  of 
the  within  debtor  in  certain  goods  [describe  them]  owned 
by  the  said  debtor  in  partnership  with  A.  B.  and  C.  D. 
under  the  firm  of  A.  B.  &,  Co.  the  same  being  partnership 
property  of  said  company,  and  I  forthwith  drew  an  account 
of  the  particulars  of  said  property,  and  posted  up  the  same 
on  the  sign-post,  in  the  society  of  ,  within  which  the 
same  was  taken,  and  with  such  account  I  also  posted  up  a 
notice  that  all  the  right,  title  and  interest  of  said  debtor  in 
said  property,  as  one  of  the  partners  of  said  partnership, 


would  be  sold  at  public  vendue,  at  the  end  of  twenty  days, 
from  the  date  of  said  notice,  the  day  of  sale  being  specifi- 
ed, and  on  said  day  1  did  accordingly  sell  at  said  sign-post, 
all  the  right  and  interest  the  said  debtor  had  in  said  pro- 
perty, as  one  of  the  partners  of  said  firm,  to  L.  M.,  for 
dollars,  he  being  the  highest  bidder  therefor  &c. 

Where  the  body  is  taken  and  committed, 
By  virtue  hereof  I  made  demand  of  the  within  debtor 
of  the  debt  due  hereon,  and  my  fees,  on  the       day  of 
at  the  dwelling-house  of  the  said  debtor,  in  said         ,  who 
then  and  there  neglected  to  pay  the  same,  whereupon  I 
made  search  for  goods  and  estate  of  said  debtor,  and  con- 
tinued diligently  to  enquire  therefor  through  my  precincts, 
until  the  day  of         ,  but  could  find  none,  whereon  to 

levy  to  satisfy  said  execution,  {or  if  some  estate  is  found, 
but  not  sufficient,  but  I  could  not  find  goods  or  estate  of 
said  debtor,  sufficient  to  satisfy  said  execution,  and  my  fees 
thereon]  and  for  want  thereof,  on  said  day  of  ,  I 
levied  said  execution  on  the  body  of  said  debtor,  and  forth- 
with conveyed  and  delivered  him  into  the  custody  of  the 
keeper  of  the  gaol  of  said  county  of  H  ,  by  him  to  be 
safely  kept  within  said  prison,  and  left  with  s-aid  keeper  an 
attested  copy  of  this  execution,  and  of  my  doings  thereon 
endorsed. 

Where  the  defendant  is  arrested  and  dies. 
The  within  debtor  having  neglected  and  failed  to  satisfy 
this  execution,  although  I  demanded  the  same  of  him  at  his 
usual  place  of  abode,  on  the  day  of  ,  afterwards  I 
made  search  for  goods  and  estate  whereof  to  levy,  but 
could  find  none  within  my  precincts,  whereupon  I  levied 
this  execution  on  the  body  of  the  defendant  on  the 
day  of  ,  he  then  being  sick,  whereby  I  could  not  con- 
vey him  to  gaol,  and  he  continued  sick  until  the  day 
of  ,  when  he  died  of  a  disease  called  ,  while  in 
my  custody. 

Non  est  inventus,  or  -where  neither  goods  or  the  body  can 

be  found. 

By  virtue  hereof  I  made  diligent  search  for  goods  and 
estate  of  the  within  debtor,  whereof  to  levy,  to  satisfy  this 
execution,  but  could  find  none  within  my  precincts,  neither 
22* 


could  i  find  the  body  of  the  said  debtor,  wherefore,  on  the 
day  of        I  returned  this  execution  wholly  unsatisfied. 

Where  the  debtor's  body  is  arrested,  released,  and  goods 
taken. 

Having  by  virtue  hereof,  made  demand  of  the  within 
debtor,  at  his  usual  place  of  abode,  on  the  day  of 
of  the  sum  due  on  this  execution,  and  of  my  fees,  which 
he  neglected  to  pay,  and  being  unable  to  find  any  goods 
whereon  to  levy  to  satisfy  the  same,  I  arrested  the  body  of 
said  debtor,  and  was  proceeding  with  him  to  the  gaol  of 
said  county  of  ,  when  said  debtor,  to  procure  the  re- 

lease of  his  body  and  to  satisfy  said  execution,  turned  out 
to  me  a  silver  watch,  with  a  gold  chain,  seal  and  key,  where- 
upon I  released  the  body  of  said  debtor  from  said  arrest, 
and  levied  this  execution  on  said  watch,  seal,  and  key,  and 
forthwith  drew  an  account  of  the  same  &c.  [same  as  io  the 
preceding.] 

Where  real  estate  is  levied  on  and  set  off. 
By  virtue  hereof  on  the  day  of  ,  I  made  demand 
of  the  within  A.  B.  at  his  usual  place  of  abode,  of  the  sev- 
eral sums  due  on  this  execution,  and  of  my  fees  thereon, 
which  he  neglected  to  pay,  and  not  being  able  to  find  any 
personal  estate  of  the  said  debtor  within  my  precincts,  and 
none  being  shewn  me  by  him,  whereon  to  levy,  by  virtue 
hereof  and  by  direction  of  the  creditor  herein,  (or  of  R. 
S.  attorney  to  said  creditor)  I  levied  this  execution  on  a 
certain  piece  of  land,  whereof  the  said  debtor  was  seised 
and  possessed  in  fee,  (or  of  an  estate  for  life  or  years)  sit- 
uated in  said  town  of  ,  and  bounded  and  described  as 
follows,  viz.  (describe  the  land),  containing  by  estin 

acres,  and  thereupon  I  applied  to  C.  D.  the  within 
named  creditor,  who  appointed  R.  R.,  and  I  also  applied  to 
A.  B.  the  within  named  debtor,  who  appointed  L  L.,  and 
the  said  creditor  and  debtor  agreed  upon  and  appointed  O. 
P.,  all  indifferent  freeholder?  of  said  town  of  ,  to  ap- 
praise and  value  said  land  ;  [or  the  debtor  neglecting  and 
refusing  to  appoint  or  agree  on  one  or  more  appraisers,  I 
applied  to  J.  P.  justice  of  the  peace  for  said  county  of 
residing  in  said  town  of  ,  and  by  law  qualified  to  judge 
between  said  parties,  who  designated  L.  L.  and  O.  P.,  all 


indifferent  freeholders  of  said  town  of  ,  appraisers, 

to  appraise  and  value  said  land  :  and  the  said  J.  P.  justice 
of  the  peace  administered  to  the  said  R.  R.,  L.  L.  and  O.  P. 
the  oath  by  kw  in  such  case  provided  ;  and  said  apprais- 
ers, after  viewing  said  land,  did  then  and  there  apraise  and 
estimate  said  land,  at  the  sum  of  dollars,  as  the  true 

and  just  value  of  the  same,  of  which  valuation  they  made 
a  certificate  under  their  hands,  in  writing,  and  on  the  same 
day  1  set  off  to  said  C.  D.  the  whole  of  said  described  piece 
of  land,  in  satisfaction  of  this  execution,  and  of  my  fees 
and  charges  thereon ;  (or  they  appraised  and  estimated  said 
land  at  thirty  dollars  per  acre,  as  its  true  and  just  value  : 
whereupon  I  set  off  to  the  said  creditor  eleven  acres  there- 
of, bounded  and  described  as  follows  :  (here  describe  the 
part  of  the  land  set  off)  in  full  satisfaction  of  this  execution, 
&  of  my  fees  and  the  charges  thereon  ;  ;uid  on  the  day  of 
I  caused  this  execution  to  be  recorded  in  the  records  of 
lands  of  the  town  of  ,  within  which  said  land  lies. 

Attest.         M.  S.,  Constable. 

[Although  not  absolutely  necessary,   it  is  most  safe  and 
correct,   that  the  To*tice  should  make  a  certificate  of  the 
administration    of  the  oath  and  of  the  appointment   when 
mude  by  him,  on  the  execution  ;  find  also  that  the  ;i]' 
ers  should  make  a  certificate  of  their  valuation  therein.] 

H          county,  ss.   H       ,     day  of         A.  D. 

Then  1  administered  to  R.  R..  L.  L.  and  O.  P.  the  above 
named  appraisers,  the  oath  by  law  provided  for  appraisers 
of  1  md  on  execution  ;  [or  where  the  justice  makes  an  ap- 
pointment also  :]  Then,  on  application  of  M.  S.  constable, 
I  appoint  L.  L.  and  O.  P.  both  indifferent  freeholders  of 
sr.irl  +own  of  appraisers,  to  appraise  and  estimate,  with 
R.  R.  appointed  by  the  above  named  creditor,  the  land 
above  described,  and  then  and  there  administered  to  the 
said  L.  L.,  O.  P.  and  R.  R.  the  oath  by  law  provided  for 
appraisers  of  land  on  execution. 

J.  P.  Justice  of  the  Peace. 

We,  the  subsbribers,  freeholders,  of  the  town  of  hav- 
ing bee<-  -iprointfd  and  sworn  as  above  specified,  to  rip- 
praise  the  above  described  piece  of  land,  to  be  set  off  on 


260 

said  execution,  did  appraise  the  same  at  the  sum  of        per 
acre,  as  the  true  and  just  value  thereof. 

R.  R. 

L.  L. 

O.  P. 

Received  the        day  of         A.  D.          and  recorded  in 
the         book  of  the  records  of  lands  of  the  town  of 

Items  of  fees.  C.  C.  Register. 

Where  lands  belong  to  the  debtor  as  tenant  in  common. 
By  virtue  hereof,  on  the  day  of  at  his  usual  place 
of  abode,  I  made  demand  of  the  within  debtor  of  the  debt 
due  hereon,  and  of  my  fees,  which  he  neglected  to  pay,  and 
afterwards  1  made  diligent  search  for  goods  and  estate  of 
the  said  debtor  whereon  to  levy,  to  satisfy  this  execution, 
but  could  find  none  within  my  precincts  ;  for  want  where- 
of, and  by  the  direction  of  the  creditor,  I  levied  this  execu- 
tion, on  all  the  right,  title  and  interest  the  said  debtor  had 
in  a  certain  piece  of  land  situated  in  said  town  of  con- 
taining by  estimation  acres,  and  bounded  and  described 
as  follows  :  [here  describe  and  bound  the  premises]  the 
same  belonging  to  the  said  debtor  as  tenant  in  common  with 
J.  S.  and  R.  N.  in  equal  shares,  and  thereupon  the  said 
creditor  appointed  A.  B.  and  the  said  debtor  appointed  C. 

D.  both  indifferent  freeholders,  of  said  town  of          to  ap- 
praise and  estimate  the  right  and  interest  of  said  debtor  in 
said  land,  and  the  said  creditor  and  debtor  being  unable  to 
agree  on,  or  appoint  another  appraiser,  I  applied  to  J.  P. 
one  of  the  justices  of  the  peace  of  said  town  of        qualified 
to  judge  between  said  parties,  who  appointed  E.  F.  an  in- 
different freeholder,  of  said  town  of          another  appraiser 
of  the  right  of  said  debtor  in  said  land  ;  and  thereupon  the 
said  justice,  J.  P.  administered  to  the  said  A.  B.,  C.  D.  and 

E.  F.  the  oath  by  law  provided  for  the  appraisers  of  land 
on  execution,  and  having  viewed  said  land,  said  appraisers 
did  then  and  there  appraise  and  estimate  the  right,  share 
and  interest  of  the  said  debtor,  being  the  undivided  third 
part  thereof,  at  the  sum  of  five  hundred  dollars,  as  the  just 
and  true  value  thereof,  and  did  certify  the  same  under  their 
hands  in  writing  ;  and  this  execution,  costs  and  charges, 
amounting  to  the  sum  of  two  hundred  thirty  dollars  and  fif- 


261 

ly  cents,  I  thereupon  set  off  to  the  creditor  herein,  such 
part  or  proportion  of  the  said  debtor's  share,  right  and  in- 
terest, as  two  hundred  thirty  dollars  fifty  cents  bear  to  five 
hundred  dollars,  the  amount  of  his  whole  interest  as  valued 
by  said  appraisers,  in  full  satisfaction  of  this  execution,  and 
of  all  charges  and  fees  thereon.  And  on  the  day  of 
I  caused  this  execution,  and  the  endorsement  of  ray  said  do- 
ings thereon,  to  be  recorded  in  the  records  of  land  of  the 
town  of  within  which  the  said  land  lies. 

Attest.  M.  S.  Constable. 

Items  of  fees. 

The  certificate  of  the  justice  of  administering  the  oath, 
will  be  the  same  as  the  preceding  ;  and  the  certificate  of  the 
appraisers  the  same,  except  that  instead  of  stating  they  ap- 
praised and  estimated  the  land,  at  such  a  sum,  they  should 
state  that — they  appraised  and  valued  the  right  and  title  and 
interest  of  said  debtor  in  said  land,  being  an  undivided  third 
part  or  share  thereof,  owned  by  said  debtor  in  common 
with  J.  S.  and  R.  N.  as  tenants  in  common,  at  the  sum  of 
five  hundred  dollars,  as  its  just  and  true  value. 

Where  a  levy  is  made  on  mortgaged  premises , 
State  the  demand,  &,c.  the  same  as  the  preceding: — and 
for  want  of  goods,  whereof  to  satisfy  this  execution,  and  by 
direction  of  the  creditor,  I  levied  the  same  on  all  the  right, 
title  and  interest  the  said  debtor  had  in  and  to  a  certain  piece 
of  land  situated  in  said         and  bounded  as  follows  : 
and  containing  by  estimation        acres,  being  a  right  or  equi- 
ty of  redemption  in  said  premises,   the  same  having  been 
mortgaged  by  said  debtor  to  R.  S.   by  deed,  bearing  date 
the     day  of  for  the  security  of  the  sum  of  three  hun- 

dred dollars  and  the  interest,  amounting  at  the  time  of  said 
levy  to  the  sum  of  three  hundred  fifty-five  dollars  and  fifty 
cents,  and  thereupon  the  said  creditor  appointed  A.  B.  and 
the  said  debtor  refusing  to  appoint  or  agree  on  one  or  more 
appraisers,  I  applied  to  J.  P.  justice  of  the  peace  for  the 
county  of  H  in  said  town  of  and  qualified  to  judge 
between  said  parties  who  designated  and  appointed  C.  D. 
and  E.  F.  all  indifferent  freeholders  of  said  town  of  ap- 
praisers, to  appraise  and  value  the  equity  of  redemption  in 
said  premises,  or  his  right  and  interest  therein,  subject  to 


262 

said  mortgage,  and  the  said  justice  J.  P.  then  and  there  adr 
ministered  to  the  said  A.  B.,  C.  D.  and  E.  F.  the  oath  by 
law  provided  for  appraisers  of  land  on  execution,  and  hay- 
ing viewed  said  premises  and  ascertained  the  amount  of  said 
mortgage  debt,  said  appraisers  did  appraise  and  estimate 
said  equity  of  redemption,  or  the  right  and  interest  of  said 
debtor  in  said  premises,  subject  to  said  mortgage,  at  the  sum 
of  two  hundred  dollars,  and  said  execution,  the  charges  and 
fees  thereon,  amounted  to  the  sum  of  one  hundred  twenty- 
five  dollars  and  twenty-five  cents,  whereupon  I  set  off  to 
said  creditor  such  part  or  proportion  of  the  said  equity  of 
redemption,  or  said  debtor's  right  and  interest  in  said  de- 
scribed premises,  as  one  hundred  twenty-five  dollars  and 
twenty-five  cents  bear  to  two  hundred  dollars,  the  amount 
ofhis  whole  interest  therein,  as  valued  by  said  appraisers, 
in  full  satisfaction  of  this  execution  and  of  all  charges  and 
costs  thereon.  And  on  the  day  of  1  caused  this  exe- 
cution, and  the  endorsement  of  my  doings  thereon,  to  be  re- 
corded in  the  records  of  lands  in  the  town  of  within 
which  said  land  lies. 

Certificate  of  Justice,  same  as  in  other  cases. 

Certificate  of  Appraisers. 

We,  the  underwritten  freeholders  of  the  town  of 
having  been  appointed  and  sworn  as  aforesaid  to  appraise 
and  estimate  the  equity  of  redemption  or  right  and  interest 
of  the  above  named  debtor  in  the  mortgaged  premises  above 
described,  subject  to  said  mortgage  debt,  amounting  to  three 
hundred  fifty-five  dollars  fifty  cents,  did  estimate  and  ap- 
praise the  same  at  two  hundred  dollars,  as  its  just  and  true 
value. 

Where  there  has  been  a  previous  levy  of  an  execution, 
the  debtor's  equity  of  redemption,  or  right  and  interest  in 
the  mortgaged  premises  must  be  appraised,  not  only  subject 
to  the  mortgage  debt,  but  also  subject  to  the  amount  of  the 
prior  execution  levied  thereon,  and  the  same  stated  in  the 
officer's  endorsement  and  the  certificate  of  the  appraisers. 

2.  Of  return  on  execution  issued  on  foreign  attachment. 
H         county,  ss.  H         ,       day  of        A.  D. 

Then,  by  virtue  hereof,  and  by  the  direction  of  the  cred- 


263 

itor,  I  made  demand  of  A.  B.  described  in  the  original  writ 
as  the  agent,  factor,  trustee,  attorney  and  debtor  of  the  within 
named  debtor,  and  with  whom  a  copy  of  said  writ  was  leit  in 
service,  of  goods  and  effects  of  the  debtor  herein,  in  his 
hands,  whereon  to  levy,  to  satisfy  this  execution  and  the 
fees  thereon,  and  also  of  the  moneys  and  debt  or  debts  due 
from  him  to  the  within  debtor,  but  the  said  A.  B.  neglected 
and  refused  to  expose  the  goods  or  effects  of  said  debtor  in 
his  hands,  and  to  pay  to  me,  to  apply  hereon,  the  moneys 
or  debt  due  from  him  to  the  within  debtor  ;  and  I  also  made 
diligent  search  for  goods  and  estate  of  the  within  named 
debtor  throughout  my  precincts,  whereof  to  satisfy  this  ex- 
ecution, and  also  for  his  body,  but  could  find  neither, 
wherefore  I  return  this  same  execution  wholly  unsatisfied. 

If  there  are  more  garnishees  than  one,  demand  must  be 
made  of  each,  and  so  stated  in  the  return  ;  and  if  any  goods 
are  turned  out  or  exposed,  it  is  the  duty  of  the  officer  to 
take  them,  although  insufficient,  when  the  debtor  is  not 
within  his  precincts.  If  goods  are  levied  on,  they  will  be 
sold  the  same  as  in  other  cases,  and  return  made  accord- 
ingly. 

3.  Return  onexecution  against  an  executor  or  administrator. 
By  virtue  hereof,  I  made  diligent  search  for  goods  and 
estate  of  the  deceased  mentioned  within,  throughout  my 
precincts,  whereon  to  levy,  to  satisfy  this  execution,  but 
could  find  none  ;  I  also  made  demand  of  A.  B.  the  within 
named  executor  of  the  last  will  of  said  deceased,  of  the  con- 
tents of  this  execution,  which  he  neglected  to  pay,  and  also 
to  expose  goods  of  the  deceased,  in  his  hands,  which  he  re- 
fused to  do  ;  wherefore  I  return  this  execution  wholly  un- 
satisfied. 

On  an  execution  against  a  corporation,  the  officer  will 
state  in  his  return  that  he  levied  on  the  goods  of  the  within 
named  corporation,  &c.  except  executions  against  towns 
and  societies,  when  he  will  say  that  he  levied  on  the  goods, 
naming  them,  of  A.  B.  a  legal  inhabitant,  and  resident  ofthe 
within  named  town  of  &c. 

4.   Of  return  on  execution  in  ejectment. 
By  virtue  hereof,  I  have  caused  A.  B.  within  named,  te 


2G4 

have  seisin  and  possession  of  the  within  described  premis- 
es ;  and  have  received  of  the  within  named  C.  D.  the  sum 
of  dollars,  the  amount  of  damages  and  costs  of  this  exe- 
cution, and  also  the  amount  of  my  fees.  If  the  damages  and 
costs  are  not  paid,  he  must  collect  the  same  as  in  other  ex- 
ecutions. 

Another. 

1  hereby  certify  that  no  one  on  the  part  of  the  within 
named  A.  B.  came  to  shew  me  the  within  described  premis- 
es, and  therefore  I  could  not  cause  the  said  A.  B.to  be  put 
into  possession  and  seisin  of  the  same  as  herein  commanded, 

5.  Of  Supersedeas. 

I  hereby  certify  that  after  this  writ  was  delivered  to  me 
to  execute,  and  before  I  had  commenced  the  execution  of 
the  same,  1  was  duly  notified  that  a  writ  of  error  in  due 
form  had  been  issued  for  the  reversal  of  the  judgment  on 
which  this  execution  was  issued,  by  a  copy  of  said  writ 
of  error  being  left  with  me  by  C.  D.  deputy  of  the 
sheriff  of  with  his  proper  endorsement  or  certificate 
thereon  made  and  attested  ;  by  reason  whereof  I  could 
not  execute  this  writ  as  herein  commanded. 


CHAPTER  VII. 

ttF    RETURNS  ON  WARRANTS  FOR  THE  COLLECTION  OV  TAXES. 

When  a  warrant  for  the  collection  of  taxes  is  levied  on 
goods  or  the  body,  the  return  is  the  same  as  on  execu- 
tions, but  where  land  is  levied  on,  the  proceedings,  and 
consequently  the  return  is  entirely  different. 

IVJicrc  /a or/  is  levied  on  by  a  tax  warrant. 
By  virtue  of  this  warrant.  I  notified  A.  B.  one  of  the  in- 
habitants of  the  town  of  H  named  in  the  schedule  or 
rate  bill  hereunto  annexed,  that  I  would  receive  his  said 
tax  at  in  said  town  of  on  the  day  of  and  gave 
him  reasonable  warning  and  opportunity  to  pay  his  said  tax, 
contained  in  said  rate  bill  ;  and  said  A.  B.  having  neglected 
and  failedto  pay  the  same,  and  finding  no  goods  or  chattels 


Ml 

afthe  said  A.  B.  within  said  town  of  on  the  day  of 
J  levied  this  warrant  on  two  acres  of  land  of  the  said  A.  B. 
situated  in  said  and  thereupon  advertised  and  gave  no- 
tice in  a  newspaper  printed  in  hi  called  the  '  Times,' 
within  the  same  county  where  said  land  lies,  that  so  much 
thereof  would  be  sold  at  the  public  inn  of  C.  D.  in  said  H 
at  public  auction,  as  would  pay  the  said  tax  of  A.  B.  and  all 
costs  and  charges,  on  the  day  of  at  o'clock  ;  and 
which  said  notice  was  published  in  said  newspaper  three 
weeks  successively,  at  least  six  weeks  before  said  time  of 
gale  ;  and  on  said  day  of  I  accordingly  sold  at  the 
place  aforesaid,  at  public  auction,  to  R.  S.  one  half  of  an 
acre  of  said  land,  for  the  sum  of  dollars  and  cents,  he 
being  the  highest  bidder  therefor,  said  sum  being  the 
amount  of  the  "said  A.  B.'s  said  tax,  and  the  costs  and  charg- 
es, and  then  and  there  1  set  out  to  said  R.  S.  the  land  so 
sold  by  metes  and  bounds,  which  are  as  follows  :  [here 
bound  the  land  sold]  and  thereupon  I  executed  to  the  said 
R.  S.  a  deed  of  warranty  of  said  half  acre  of  land,  containing 
the  boundaries  thereof  as  aforesaid,  in  conformity  to  the 
statute  in  such  case  provided. 

Items  of  fees.  M.  S.  Constable. 

Where  land  is  levied  on  which  has  been  transferred. 
State  the  notice  of  time  and  place,  &c.  same  as  the  pre- 
ceding : — and  being  unable  to  find  any  goods,  chattels,  lands, 
or  any  estate  whatsoever,  liable  to  be  taken  of  the  said  A. 
B.  I  levied  this  warrant  on  a  certain  piece  of  land  situated 
in  containing  about  four  acres,  and  which  belonged  to 
the  said  A.  B.  when  the  list  was  made  up,  on  which  said  tax 
arose,  and  said  tax  was  payable  on  the  day  of  less  than 
one  year  preceding  said  levy  ;  and  thereupon  I  advertised 
and  gave  notice  in  a  newspaper  called  the  printed  in 

H  within  the  county  wherein  said  land  lies,   that  so 

much  thereof  would  be  sold,  &c.,  the  same  as  the  preceding, 
A  levy  for  a  state  tax  cannot  in  any  case  be  made  more  than 
two  months  previous  to  the  time  the  tax  is  payable  ;  and  a 
levy  cannot  be  made  on  land  which  has  been  sold,  transfer- 
red or  attached  by  a  creditor,  but  within  one  year  after  the 
tax  becomes  payable  ;  but  lartd  which  has  not  been  trans- 
ferred, may  be  taken  and  sold  at  any  time. 
23 


56G 

Deed  of  Land  sold  for  town  Taxes. 

To  all  people  to  whom  these  presents  may  come,  Greeting  : 
Know  ye,  that  whereas,  on  the     day  of        A.  D.     a  tax 
of     cents  on  the  dollar,  was  voted  and  granted  by  the  in» 
habitants  of  the  town  of  then  regularly  assembled,  oa 

all  the  inhabitants  of  said  town  liable  by  law  to  pay  taxes, 
on  the  list  made  up  for  the  year  and  thereupon  the  se- 
lect-men of  said  town  made  out  a  rate  bill,  containing  the 
names  of  the  said  inhabitants,  and  the  proportion  each  was 
to  pay  of  said  tax,  which  said  rate-bill  with  a  warrant  there- 
to annexed,  duly  issued  and  signed  by  J.  P.  justice  of  the 
peace  for  said  county,  and  in  due  form  of  law,  was  put  into 
my  hands  to  levy  and  collect,  agreeably  to  the  direction  in 
said  warrant,  1  having  previously  been  appointed  collector 
(or  one  of  the  collectors)  of  said  tax  ;  and  A.  B.  one  of  the 
persons  named  in  the  rate  bill  or  list  annexed  te  said  war- 
rant, having  failed  to  pay  his  proportion  of  said  tax,  al- 
though notified  of  a  time  and  place  for  the  payment  of  the 
same,  and  proper  warning  and  opportunity  given  him  there- 
for, and  for  want  of  personal  estate  of  said  A.  B.  whereof  to 
levy  said  tax,  on  the  day  of  I  levied  this  warrant  on 
a  certain  piece  of  land  of  the  said  A.  B.  situated  in  said 
town  of  containing  about  four  acres,  and  thereupon  ad- 
vertised and  gave  notice  in  a  newspaper  printed  at  H 
called  the  Times,  within  the  county  where  said  land  lies, 
that  so  much  of  said  land  would  be  sold  at  auction  on  the 
day  of  in  said  town  of  at  the  tavern  of  as  would 
be  sufficient  to  pay  said  tax  and  the  costs  and  charges  ;  and 
which  notice  was  published  in  said  paper  three  weeks  suc- 
cessively, at  least  six  weeks  before  said  day  of  sale  ;  and  on 
said  day  of  sale,  by  virtue  of  said  warrant,  and  in  pursuance 
of  said  notice,  I  sold  at  public  auction,  to  C.  D.  one  half 
acre  of  said  land,  for  the  sum  of  dollars  and  cents,  be- 
ing the  amount  of  said  A.  B.'s  said  tax,  and  the  costs  and 
charges  thereon,  and  bounded  and  described  as  follows,  viz. 
[here  bound  the  land.]  Wherefore,  by  authority  of  said 
warrant,  and  by  means  of  the  premises,  I,  M.  S.  collect- 
or of  the  tax  aforesaid,  in  consideration  of  said  sum  of 
received  by  me  of  said  C.  D.  do  by  these  presents 
give,  grant,  sell  and  confirm  unto  him,  the  said  C.  D.  and 
his  heirs  and  assigns  forever,  the  above  described  half  acre 
of  land,  with  all  the  privileges  a»d  appurtenances  thereof. 


.0  have  and  to  hold  the  said  sold  and  granted  premises,  uu- 
to  his  and  their  proper  use  and  behoof  forever  ;  and  1,  the 
said  collector,  do  by  these  presents  bind  myself  and  my 
heirs  forever,  to  warrant  and  defend  the  above  sold  and 
granted  premises  unto  the  said  C.  D.  his  heirs  and  assigns, 
against  all  claims  and  demands  whatsoever. 

In  witness  whereof,  I  have  hereunto  subscribed  my  name 
and  office,  this  day  of  A.  D. 

M.  S.  collector  of  the  town 
tax  of  the  town  of      made  on 
Signed,  sealed,  and  deliv- )     the  list  of  the  year  of 

ered  in  presence  of       $ 

H         county,  ss.  H        ,      day  of         A.  D. 

Personally  appeared,  M.  S.  collector  of  the  above  descri- 
bed tax,  and  signer  and  sealer  of  the  foregoing  instrument, 
and  acknowledged  the  same  to  be  his  free  act  and  deed  be- 
fore me.  J.  P.  Justice  of  the  Peace. 

Deed  in  case  of  sale  on  state  Tax. 

To  all  people,  &c. 

Know  ye  that,  whereas  I,  M.  S.  constable,  of  the  town  of 
on  or  about  the     day  of  was  appointed  in  and  for 

said  town,  collector  of  a  tax  granted  by  the  general  assembly 
of  this  state,  at  their  session  in  May,  A.  D.  ,  on  the  list  of 
,  being  cents  on  the  dollar,  on  said  list  ;  and  on  or 
about  the  day  of  1  received  from  I.  S.  treasurer  of 
said  state,  a  warrant,  by  him  signed,  dated  the  day  of 
and  in  due  form  of  law  directed  to  me,  commanding  me  to 
levy  and  collect  said  tax  of  cents  on  the  dollar  on  said  list, 
of  all  the  inhabitants  of  said  town  of  H  amounting  in  the 
whole  to  the  sum  of  dollars,  and  pay  the  same  into  the 
treasury  of  said  state  by  the  day  of  A.  D.  ;  and  A. 
B.  one  of  the  inhabitants  of  said  town,  having  neglected  and 
failed  to  pay  his  proportion  of  said  tax,  although  he  was  du- 
ly notified  of  a  time  and  place  to  pay  the  same,  and  had 
proper  warning  and  opportunity  so  to  do,  and  for  want  of 
personal  estate  of  the  said  A.  B.  whereof  to  satisfy  said  tax, 
I  levied  this  warrant  on  a  certain  piece  of  land,  containing 
about  acres,  and  thereupon  advertised  the  same,  &c. — 
fthe  same  as  the  preceding). 


Where  the  land  has  been  transferred. 
State  the  levy  as  follows  :  and  for  want  of  any  estate,  per- 
sonal or  real,  of  the  said  A.  B.  whereof  to  satisfy  said  tax. 
•n  the        day  of         A.  D.      ,1  levied  this  warrant  on  fi 
certain  piece  of  land  situated  in         and  containing  about 
acres,  belonging  to  the  said  A.  B.  at  the  time  said  list  wafe 
made  up,  and  which  said  levy  was  made  within  one  year  af- 
ter said  tax  became  due  and  payable,  and  thereupon,  &c. 

General  return  on  Tax  Warrant. 

By  virtue  of  this  warrant  I  have  levied  and  collected  oi 
the  several  inhabants  of  the  town  of  whose  names  are 
contained  in  the  list  hereunto  annexed,  the  amount  of  the 
tax  specified  herein,  and  such  part  or  proportion  thereof  oi 
•"•nch.  as  is  specified  in  said  list. 


CHAPTER  VIII. 

•F    THE    SERVICE    OF    CRIMINAL    PROCESS. 

A  Constable  is  the  proper  officer  to  execute  the  warrants 
of  justices  of  peace  in  criminal  cases  ;  but  a  justice  can  di- 
rect a  warrant  issued  by  him,  to  the  sheriff,  or  either  of  his 
deputies,  of  any  county  in  the  state,  who  can  serve  and  re- 
turn the  same,  or  the  Constables  of  any  town  in  the  state, 
or  to  an  indifferent  person  by  name,  who  may  serve  the 
same  in  any  part  of  the  state  (a).  But  a  justice  can  only 
grant  a  warrant  for  crimes  committed  within  his  county  ; 
nor  can  he  issue  a  warrant,  directing  the  person  arrested 
(o  be  brought  before  a  justice  of  the  peace  of  any  other 
county,  or  to  bring  him  before  the  same  justice,  at  a  place 
out  of  his  county  ;  and  a  Constable  cannot  safely  execute 
a  warrant  of  that  description  ;  nor  any  warrant  where  it 
appears  upon  the  face  of  it,  the  justice  has  no  jurisdiction 
to  order  the  person  brought  before  him  for  trial,  or  encfuiry, 
as  the  case  may  be  ;  as  where  the  crime  is  charged  as  hav- 
ing been  committed  out  of  the  county  or  state.  A  warrant 
directed  to  a  particular  Constable  by  name,  may  be  served 

(a)  St.  May  se».  1822. 


in  any  part  of  the  state,  being  the  same  as  though  directed 
to  him  as  an  indifferent  person  ;  but  if  directed  generally  to 
any  Constable  in  the  state,  no  one  could  serve  it  out  of  his 
precincts.  If  a  Constable  refusess  to  execute  a  lawful  war- 
rant directed  to  him,  it  is  a  criminal  offence.  A  general 
warrant  to  apprehend  all  persons  suspected  of  having  com- 
mitted a  particular  crime  is  void  ;  and  a  warrant  command- 
ing the  officer  to  search  all  suspected  houses  or  places  for 
stolen  goods,  is  also  illegal,  and  any  act  done  under  either, 
would  subject  an  officer  to  be  sued  as  a  trespasser.  War- 
rants are  either  issued  upon  complaint  of  an  informing  offi- 
cer, to  arrest  a  person  charged  with  a  crime,  search  war- 
rants to  search  for  stolen  goods  and  arrest  the  person  charg- 
ed, or  warrants  to  carry  into  effect  a  sentence,  or  for  com- 
mitment after  judgment. 

1.  An  arrest  on  a  warrant  is  made  in  the  same  manner  as 
on  civil  process,  an  actual  touching  of  the  person  being  ne- 
cessary to  constitute  an  arrest,  unless  he  submits  to  the  au- 
thority of  the  officer  without.  There  is  one  important  dis- 
tinction, however,  between  criminal  and  civil  process  as  to 
arrests,  as  an  officer  cannot  break  open  doors  to  take  a  per- 
son on  civil  process  ;  but  when  a  warrant  is  granted  on  a 
complaint  for  a  crime,  the  officer  has  power  to  break  open 
doors  if  necessary,  to  arrest  th«  criminal,  after  having  signi- 
fied the  cause  of  his  coming  and  requested  admittance.  If 
that  is  refused,  he  is  justified,  and  it  is  his  duty  to  break 
open  doors  to  make  an  arrest.  An  officer  is  not  bound  to 
show  the  person  his  warrant,  although  he  demand  a  sight  of 
it ;  but  he  ought  to  inform  him  that  he  arrests  him  by  vir- 
tue of  a  warrant,  and  acquaint  him  with  the  substance  of 
it  (d).  Where  an  arrest  is  made  without  a  warrant,  which 
is  unlawful,  a  warrant  being  granted  afterwards  will  not 
make  it  lawful.  Strictly,  an  officer  cannot  permit  a  person 
arrested  on  a  warrant  to  go  at  large  on  his  promise  to  re- 
turn, and  by  the  common  law  he  could  not  be  arrested 
again  by  authority  of  the  same  warrant,  as  it  is  considered  a 
voluntary  escape  ;  but  it  has  been  decided  in  this  state,  that 
where  a  person  is  arrested  on  an  execution,  and  permitted 
to  go  at  large  by  the  officer,  this  is  not  a  voluntary  escape, 
and  that  he  may  be  retaken  and  committed  during  the  life 

(d)  6  Co.  54, 
23* 


270 

of  the  execution,  which  will  justify  the  officer.  The  prin- 
ciple of  {his  decision  has  not  been  sanctioned  by  the  court 
of  errors,  but  if  it  is  considered  as  settled  law,  in  this^tate, 
it  would  seem  by  parity  of  reason,  that  the  permitting  a 
person  arrested  on  criminal  process  to  go  at  large,  on  his 
promise  to  return,  would  not  be  a  voluntary  escape,  and  that 
the  officer  might  be  justified  in  retaking  him.  If  a  person 
arrested  on  criminal  process,  and  permitted  to  be  at  large, 
voluntarily  return,  according  to  the  common  law  the  officer 
may  detain  him  on  the  same  warrant  and  bring  him  before 
the  court,  agreeably  to  the  command  in  the  writ.  A  Con- 
stable may  command  all  necessary  assistance  to  execute  a 
warrant  ;  if  he  is  assaulted,  he  need  not  retreat  as  a  private 
person  should  do  ;  and  if  in  striving  together  he  kill  the  as- 
sailant, it  is  no  felony,  but  if  the  Constable  be  killed,  it  is 
murder  (e).  And  those  who  come  to  the  assistance  of  a 
Constable,  who  is  assaulted  or  resisted  in  the  execution  of 
his  office,  whether  commanded  or  not,  are  entitled  to  the 
same  protection  of  the  law  as  such  officer. 

2.  Search  warrants  must  contain  a  description  of  the 
goods  alleged  to  have  been  stolen,  and  of  the  place  to  be 
searched.  The  constable  must  search  the  place  or  places 
described,  and  seize  the  goods,  if  they  can  be  found,  and 
also  arrest  the  person  charged  with  having  stolen  and  se- 
creted the  goods,  and  have  the  same  and  the  person, 
forthwith  before  the  justice  named  in  the  warrant.  After 
stating  the  object  of  his  coming  and  requesting  entrance 
at  the  building  where  he  is  commanded  to  make  search, 
the  officer  may  break  open  doors  if  he  is  refused  admit- 
tance ;  and  after  entering  he  may  break  the  locks  of  chests 
or  trunks,  to  examine  them,  if  they  are  refused  to  be  open- 
ed on  request ;  but  if  he  commit  any  unnecessary  violence, 
or  any  act  of  indecency  towards  any  person  belonging  to 
the  house,  he  will  not  be  justified.  The  officer  is  to  take 
the  complainant  with  him  to  point  out  the  place  and 
goods,  and  assist  in  making  search.  Where  it  does  not 
appear  from  the  warrant  and  the  complaint  that  the  goods 
had  been  stolen,  and  the  complainant  suspected  they 
were  concealed  at  a  particular  place  and  stolen  by  a  par- 
ticular person,  it  will  be  void,  and  the  officer  executing  it 

(«)  10  Co.  68. 


271 

will  be  guilty  of  a  trespass  (rf).  If  it  states  that  the  com- 
plainant suspects  a  particular  person  of  having  stolen  the 
goods,  and  sundry  other  persons,  or  that  he  suspects  that 
they  are  concealed  at  a  certain  place  in  a  particular  town, 
or  some  other  house  in  the  same  town,  and  commands  the 
officer  to  search  the  place  described,  and  all  other  sus- 
pected places,  and  to  arrest  the  persons  suspected  ;  the 
proceeding  is  corurrt  non  jvdice,  and  not  only  the  officer 
who  executes  the  warrant,  but  the  justice  who  issued  it 
is  liable  in  trespass  to  the  party  injured  (e). 

3.  Warrants  issued  after  judgment,  are  either  for  the 
commitment  of  the  prisoner  in  consequence  of  his  non- 
compliance  with  the  judgment,  or  inability  to  procure  bail 
in  case  of  binding  over,  or  to  carry  the  sentence  into  effect. 
A  warrant  of  commitment,  commonly  called  a  mittimus,  is 
either  directed  to  an  officer  commanding  him  to  convey  and 
deliver  the  person  named,  to  the  keeper  of  the  gaof,  and 
leave  with  such  keeper  a  copy  thereof,  and  also  command- 
ing such  keeper  to  receive -and  detain  such  prisoner  with- 
in the  prison  ;  or  it  is  directed  to  the  keeper  commanding 
him  to  receive  into  his  custody  and  safely  to  keep  the 
prisoner  until  discharged  by  due  course  of  law.  In  the 
latter  case  the  officer  delivers  the  prisoner  to  the  keeper, 
and  also  the  mittimus  ;  but  in  the  former  case,  he  mu?t 
leave  a  copy  of  the  warrant  or  mittimus  with  the  keeper 
and  of  the  endorsement  on  the  original,  which  strictly 
should  be  returned  to  the  justice  like  other  writs  ;  but  this 
is  not  usually  done. 

Warrants  to  enforce  the  sentence  of  a  justice  are  either 
to  distrain  or  levy  a  fine  and  costs,  to  inflict  a  corporeal 
punishment,  or  to  commit  the  prisoner  to  gaol,  where  that 
is  a  part  of  the  sentence,  as  it  now  may  be  in  a  few  cases. 
A  warrant  of  distress  commands  the  officer  to  distrain  and 
levy  of  the  goods,  chattels  and  lands  of  the  prisoner,  to 
satisfy  the  fine  and  costs  mentioned  therein,  and  for  want 
thereof  to  take  his  body  and  commit  the  same  to  prison. 
If  he  can  find  goods  he  must  take  them  and  dispose  of  them 
in  the  same  manner  as  on  execution,  and  service  is  to  be 
made  in  the  same  way.  A  warrant  for  the  infliction  of  cor- 

(d)  1  Conn.  Rep.  40.  (e)  id. 


272 

poreal  punishment  should  be  executed  forthwith.  All  war 
rants  for  carrying  into  effect  a  sentence  of  a  court  should 
he  duly  returned,  with  a  regular  endorsement  of  the  do- 
ings of  the  officer  thereon,  that  it  may  appear  from  the  re- 
cords and  files  of  the  court  that  the  sentence  had  been  per- 
formed, and  also  for  the  safety  of  the  officer.  When  how- 
ever, there  is  a  legal  judgment  and  a  proper  warrant  issu- 
ed, in  pursuance  thereof,  an  officer  would  probably  be 
justified  in  any  act  done  in  obedience  to  the  direction  of 
such  warrant,  although  no  return  had  been  made  ;  but  it 
is  most  safe  and  proper  that  a  regular  return  and  endorse- 
ment should  be  made,  as  on  other  process.  A  mittimus 
must  contain  a  recital  shewing  the  cause  of  the  commit- 
ment, and  warrants  to  enforce  the  sentence  of  a  court, 
must  recite  the  judgment  on  which  they  are  founded. 


CHAPTER  IX. 

OF    RETURNS    ON    CRIMINAL    PROCESS. 

On  complaint  and  warrant. 

H  county  ss.  H  "  day  of  A.  D.  ;  then  by  vir- 
tue hereof  I  arrested  the  body  of  the  withiu  named  A.  B. 
read  this  process  in  his  hearing,  (or  acquainted  him  with 
the  substance  of  this  process)  and  him  have  herein  court. 

M.  S.  Constable. 

Where  the  delinquent  cannot  be  found. 
By  virtue  hereof  I  made  diligent  search  for  the  within 
named  A.  B.,  but  he  has  not  been  found  within  my  pre- 
cincts. 

On  search  warrant. 

Then  by  virtue  hereof,  accompanied  by  the  within  nam- 
ed complainant  I  repaired  in  the  day  time  to  the  house  de- 
scribed in  this  warrant,  and  therein  made  search  for  the 
within  described  goods,  I  found  the  same  concealed  in  said 
building  and  seized  the  said  goods,  and  thereupon  I  arrest- 
ed the  said  A.  B.,  acquainted  him  with  the  substance  of  this 
process,  and  have  him,  and  also  said  goods,  here  in  court. 


273 

Although' the  goods  are  not  discovered  the  officer  must 
arrest  the  person  charged,  if  he  can  be  found  ;  and  if  the 
goods  are  seized  and  the  person  accused  cannot  he  found, 
or  escapes  out  of  the  officer's  precincts,  so  that  he  cannot 
be  arrested,  the  officer  must  return  the  process  and  the 
goods  to  the  justice,  to  whom  the  same  was  made  returna 
hie,  and  make  his  endorsement  acccordingly. 

Where  the  goods  cannot  be  found,  fyc. 
Then  by  virtue  hereof,  accompanied  by  the  within  nam 
ed  complainant,  in  the  day   time,  I  made  diligent  search  in 
the  building  mentioned  herein,   for  the  goods  described  in 
this  warrant,  but  could  not  find  said  goods  ;  and  by  virtue  • 
hereof,   I   arrested  the  body  of  the  within   named  C.  D., 
acquainted  him  with  the  substance  of  this  process,  and  kim 
have  here  in  court. 

On  a  mittimus. 

Then  by  virtue  hereof  I  conveyed  the  within  named  A. 
B.  to  the  gaol  in  ,  in  said  county,  and  delivered  him 

into  the  custody  of  the  keeper  of  said  gaol,  and  left  with 
said  keeper  a  true  and  attested  copy  of  this  mittimus,  and 
of  my  endorsement  thereon. 

On  warrant  of  distress. 

By  virtue  hereof  I  distrained  and  seized  a  silver  watch, 
the  property  of  the  within  named  A.  B.,  and  disposed  of 
the  same  at  public  auction,  at  the  sign-post  in  ,  on  the 
day  of  ,  according  to  law,  legal  notice  of  said  sale 
having  been  previously  given,  by  posting  up  the  same  on 
said  sign-post,  and  for  which  property  I  received  the  sum 
of  dollars,  and  the  within  fine  and  costs,  including  my 
fees  and  charges,  amount  to  the  sum  of  ,  leaving  an 

overplus  of  ,  which  1  returned  to  the  said  A.  B.,  and 
I  paid  the  said  fine  and  costs  to  the  within  justice  J.  P. 
to  be  disposed  of  according  to  law. 

Another, 

Then  by  virtue  hereof  and  for  want  of  goods  and  estate 
of  the  within  named  A.  B.  whereof  to  make  distress,  \ 
took  his  body  and  him  conveyed  to  the  gaol  in  ,  in  and 


274 

for  said  county,  and  him  delivered  into  the  custody  of  the 
keeper  of  said  gaol,  within  said  prison,  to  be  kept  until 
delivered  by  due  course  of  law,  and  left  with  said  keeper 
a  copy  of  this  warrant  and  of  my  endorsement  hereon. 

On  a  warrant  for  inflicting  corporeal  punishment,  fyc. 

Then  by  virtue  hereof  I  conveyed  the  within  named  A.  B. 
to  a  suitable  place  in  said  ,  (or  to  the  public  sign-post) 
and  then  and  there  inflicted  upon  his  naked  body  ten 
stripes,  and  thereupon  for  want  of  goods  and  estate  of  the 
said  A.  B.,  whereof  to  distrain  for  the  within  fine  and  costs, 
(or  within  costs  where  there  is  no  fine)  I  conveyed  the 
said  A.  B.  to  the  gaol  in  in  and  for  said  county,  and  de- 
livered him  into  the  custody  of  the  keeper  of  said  gaol 
within  said  prison,  and  left  with  said  keeper  a  copy  of  this 
warrant,  and  of  my  endorsement  thereon. 

EX-OFFICIO    RETURNS. 

For  breach  of  Sabbath. 

H  county  ss.  H  day  of  A.  D.  ;  I  A.  B. 
constable  of  said  town  of  ,  appear  before  J.  P.  justice 
of  the  peace  for  the  county  of  ,  and  inform  and  return 
on  my  oath  of  office,  that  on  the  day  of  ,  being  sab- 
bath or  Lord's  day,  E.  F.  and  G.  H.  both  of  said  ,  and 
sundry  other  persons  to  me  unknown,  in  profanation  of  the 
Lord's  day  were  engaged  in  divers  amusements,  in  ;;id 
town  of  ,  and  then  and  there  in  my  presence  and  view, 
the  said  E.  F.  and  G.  H.  with  the  said  persons  to  me  un- 
known, were  playing  ball,  contrary  to  the  form  of  the 
statute  in  such  case  provided  and  of  evil  example  ;  where- 
upon by  authority  of  said  statute  I  arrested  the  said  E.  F. 
and  G.  H.  and  them  detained  until  said  snbbath  had  expired, 
and  them  now  have  before  your  worship  to  be  dealt  with 
according  to  law. 

For  drunkenness. 

County  &c.  I  A  B.  constable  of  the  town  of  appear- 
ed before  C.  D.  justice  of  the  peace,  of  ,  for  the  coun- 
ty of  ,  and  present  and  inform  that  E.  F.  of  said  town 
of  ,  was  this  day  found  by  me  at  said  in  a  state  of 
drunkenness  and  intoxication,  whereby  he  was  bereft  of  his 


276 

understanding  which  was  apparent  in  his  speech  and  be- 
haviour ;  and  which  is  contrary  to  the  statute  in  such  case 
provided  and  of  evil  example  ;  whereupon  by  virtue  of 
said  statute  I  arrested  ihe  said  A.  B.  and  him  now  have  be- 
fore said  justice  C.  D.  to  be  dealt  with  as  to  law  and  jus- 
tice shall  be  found  appertaining. 

For  profane  swearing. 

County  of  &c.  I  A.  B.  constable  of  said  town  of 
come  before  C.  D.  one  of  the  justices  assigned  to  keep  the 
peace  in  said  county  of  and  present  and  inform  that  on 
this  day  at  one  E.  F.  of  in  my  presence  and  hear- 
ing, did  wickedly  and  profanely  swear  by  the  name  of 
God,  and  did  utter  and  repeat  the  following  profane  oath 
and  words  :  (recite  the  words)  contrary  to  the  statute  in 
such  case  provided,  and  of  evil  example  ;  whereupon  by 
virtue  of  said  statute  1  then  and  there  arrested  the  said  A. 
B.  and  him  now  have  before  your  worship  that  he  may  be 
dealt  with  agreeably  to  law. 

For  a  riot. 

County  of        &c.  I  A.  B.  constable  of  the  town  of 
come  before  J.  P.  justice  of  the  peace  for  said  county  of 

and  inform  and  return  that  on  the  day  of  at 
in  said  county,  C.  D.,  E.  F.  and  G.  H.  and  sundry  other 
persons  to  me  unknown,  riotously  and  unlawfully  assem- 
bled themselves  together,  with  the  intention 'against  the 
peace  and  to  the  manifest  terror  of  sundry  good  citizens  of 
this  state,  and  with  force  and  arms  to  pull  down  and  demol- 
ish, a  certain  building,  then  and  there  standing,  the  prop- 
erty of  O.  P.  of  said  ;  and  being  informed  of  said  ri- 
otous and  unlawful  assembly,  I  repaired  to  the  place,  and 
then  and  there,  in  the  presence  and  hearing  of  said  C.  D. 
E.  F.  and  G.  H.,  and  other  rioters,  commanded  silence,  and 
then  made  proclamation  in  these  words  :  "  In  the  name 
and  by  the  authority  of  the  State  of  Connecticut,  I  charge 
and  command  all  persons  assembled  immediately  to  disperse 
themselves  and  peaceably  to  depart  to  their  habitations  on 
their  lawful  business,  on  the  pains  and  penalties  of  the 
law  ;"  and  the  said  C.  D.,  E.  F.  and  G.  H.,  and  others,  not 
regarding  said  proclamation,  did  not  disperse  themselves, 


but  continued  so  riotously  ^and  unlawfully  together  after 
such  proclamation  had  been  made,  contrary  to  the  form  of 
the  statute  in  such  case  provided  and  against  the  peace  : 
whereupon  by  authority  of  the  statute  entitled,  "  An  act 
for  the  suppression  of  riots,"  I  commanded  assistance  and 
arpested  the  said  C.  D.,  E.  F.  and  G.  H.,  and  them  held 
and  now  have  before  said  justice  J.  P.  that  they  may  be 
dealt  with  agreeably  to  law. 


PART  III. 

THE  POWERS  AND  DUTIES  OF  SELECT-MEN, 
TOGETHER  WITH  FORMS,  &c. 


CHAPTER  I. 

Of  the  powers  and  duties  of  Select-Men. 

As  all  the  duties  of  Select-men  are  pointed  out  by  statute, 
and  are  in  general  very  plain,  and  as  there  have  been  few 
decisions  of  our  courts  in  any  way  affecting  them  ;  and  as 
they  afford  little  occasion  for  legal  forms,  it  was  not  our 
intention  originally  to  have  devoted  but  a  small  proportion 
of  this  work  to  a  consideration  thereof;  and  the  two  first 
parts  of  it  having  been  extended  to  greater  length  than 
was  expected,  we  shall  be  obliged  to  confine  ourselves  to 
a  concise  examination  of  some  of  the  most  important  du- 
ties of  Select-men. 

Each  town  in  the  State  is  required  at  their«annual  town 
meeting  each  year,  to  appoint  a  convenient  number,  not 
exceeding  seven  Select-men,  to  take  charge  of  the  pruden- 
tial concerns  of  such  town.  Annual  town  meetings  are  to  be 
holden  in  the  months  of  October,  November,  or  December, 
and  it  is  the  duty  of  the  Select-men  to  cause  such  meet- 
ings to  be  warned  by  a  notification  in  writing,  signed  by 
them  or  a  majority  of  them,  specifying  the  objects  of  such 
meeting,  which  must  be  posted  upon  the  several  sign-posts 
of  the  town.  The  statute  provides  that  this  shall  be  suffi- 
cient warning,  but  it  is  not  the  only  mode  of  warning  ;  and 
if  a  town  meeting  is  warned  by  the  constables,  as  the  inhab- 
itants would  have  actual  notice,  the  warning  would  be  le- 
gal ;  and  a  vote  of  the  town  designating  a  time  when  their 
town  meetings  shall  be  held  would  probably  be  sufficient 
warning.  At  any  annual  town  meeting  the  inhabitants  may 
determine  on  any  other  place  or  places,  at  which  warnings 
shall  be  posted  up,  in  addition  to  the  public  sign-posts. 
24 


Any  town  meeting  may  adjourn  from  time  to  time,  as  may 
be  necessary.  Special  town  meetings  may  be  called  when- 
ever the  Select-men  deem  it  necessary,  or  on  the  applica- 
tion of  twenty  inhabitants  qualified  to  vote  in  town  meet- 
ings. The  voters  in  town  meetings  are  the  electors  or 
freemen,  and  persons  of  twenty-one  years  of  age,  posses- 
sing a  freehold  not  subject  to  a  mortgage,  rated  in  the  com- 
mon list  at  nine  dollars,  or  personal  estate  rated  in  the  list 
at  one  hundred  and  thirty-four  dollars,  exclusive  of  their 
polls,  and  who  have  statedly  resided  in  the  town  one  year. 
If  any  person  not  qualified,  votes  or  intermeddles  in  any 
town  meeting,  he  incurs  a  forfeiture  of  seventeen  dollars 
to  the  treasury  of  the  county.  No  town  officer  can  be 
chosen  at  a  special  meeting  except  in  case  of  vacancy  by 
death,  removal,  or  refusal  to  accept  of  some  person  appoint- 
ed at  an  annual  meeting. 

The  office  of  Select-men  is  peculiar  to  New  England,  and  i* 
probably  as  ancient  as  the  first  settlement  of  the  country. 
They  were  originally  called  Townsmen,  or  the  Town's  - 
men,  as  appears  from  ancient  records  ;  and  their  duties  were 
formerly  much  more  extensive  than  at  present,  as  in  addition 
to  taking  care  of  the  general  concerns  of  the  town,  they  ex- 
ercised a  minute  inspection  and  superintendance  of  the 
morals,  manners, and  private  affairs  of  the  inhabitants  there- 
of. No  specific  qualifications  are  required  for  the  appoint- 
ment, and  any  inhabitant  or  resident,  may  be  a  Select  man. 
They  take  no  oath  of  office,  neither  is  there  any  oath  re- 
quired or  administered  to  voters  in  town  meetings. 

1.  The  general  powers  and  duties  of  Select-men  relate 
to  the  management  and  superintendance  of  the  ordinary 
interests  and  affairs  of  the  town.  It  is  provided  by  statute 
that  they  shall  superintend  the  concerns  of  the  town,  and 
adjust  and  settle  all  accounts  against  the  same,  and  draw 
order?  on  the  treasurer  thereof  for  payment,  and  that  they 
shall  keep  a  true  and  regular  account  of  all  the  expendi- 
tures of  the  town,  and  exhibit  the  same  at  the  annual 
meeting  next  following  their  appointment  (a).  Their 
general  authority  however,  as  Select-men,  does  not  ena- 
ble them  to  act  as  agents  of  the  town,  either  to  commence 
or  defend  in  a  suit  in  behalf  of  .the  town,  or  to  employ  an 

(a)  St.  458. 


279 

«titorney,  but  for  this  purpose  the  town  must  appoint  an 
igent  to  appear  for  it,  or  to  engage  counsel  (6). 

It  is  their  duty  immediately  after  the  annual  town  meet- 
ing to  cause  all  persons  who  have  been  appointed  to  town 
bffieea  to  be  summoned  to  appear  before  some  justice  of 
the  peace  of  the  town,  and  take  the  oaths  prescribed  by 
law  for  their  respective  offices.  This  is  necessary  that  it 
m, iy  be  known  whether  the  persons  chosen  accept  or  not, 
so  that  if  they  refuse,  others  may  be  appointed  to  supply 
the  vacancies. 

2.  They  superintend  the  collection  of  taxes,  and  in  cer- 
tain cases  may  assess  the  inhabitants.  When  any  tax  is 
voted  or  granted  by  the  town,  it  is  the  duty  of < the  Select- 
men to  make  out  a  rate  bill,  containing  the  proportion  which 
each  inhabitant  of  the  town  and  non-residents  having  taxa- 
ble property  in  the  town,  is  (o  pay  according  to  his  list. 
AH  town  taxes  are  to  be  granted  upon  the  last  assessment 
list,  which  has  been  completed  according  to  law.  If  any 
town  refuses  or  neglects  to  grant  a  tax  sufficient  to  defray 
the  necessary  expenditure  of  such  town,  after  being  in- 
formed by  the  Select-men  of  the  necessity  and  want  of  such 
supply,  the  Select-men  are  empowered  to  assess  the  inhab- 
itants, and  make  out  rate  bills  on  their  lists  in  the  same  man- 
ner as  where  a  tax  is  granted  by  the  town.  But  they  cannot 
assess  the  inhabitants  in  any  other  way,  or  on  any  other 
principle,  than  according  to  the  general  assessment  list. 
Whether  the  tax  is  granted  by  the  town,  or  an  assessment 
made  by  the  Select-men,  their  rate  bills  must  be  signed  by 
them,  or  a  majority  of  them  ;  and  in  either  case,  they  must 
apply  to  a  justice  of  the  peace  of  the  county  and  obtain  a 
warrant  annexed  to  such  rate  bills,  and  deliver  the  same 
into  the  hands  of  the  collectors  to  collect  such  tax  and  pay 
the  same  into  the  town  treasury  by  the  time  appointed, 
All  taxes  whether  imposed  by  the  town  or  Select-men, 
must  be  granted  upon  all  the  inhabitants  of  the  town  accord- 
ingto  their  assessment  lists,  and  afterwards  the  Select-men 
and  civil  authority  may  abate  the  proportion  of  such  tax 
belonging  to  the  indigent  and  unfortunate  ;  they  are  also 
authorized  to  abate  the  particular  rates  of  poor  and  unfor- 
tunate individuals  in  case  of  state  taxes,  but  if  such  abate 

(6)  St.  132. 


ments  exceed  one  eighth  of  the  proportion  ol't-uch  tax,  be 
longing  to  the  town,  the  excess  must  be  made  up  by  the 
town. 

If  -any  collector  of  a  town  or  state  tax  die,  or  refuse  tc 
receive  his  rate  bill,  or  shall  before  he  has  completed  the 
collection  of  any  tax,  deliver  up  his  rate  bill,  into  the  hands 
of  the  Select- men,  they  are  empowered  to  depute  some 
proper  person  to  collect  the   whole,  or  what  remains  un- 
collected   of  such   tax,  and  such  collector  shall  have  the. 
same  powers   as  other  collectors,  and  be  responsible  for 
what  there  was  due  on  said  tax  when  such  rate  bill  was  de- 
livered to  him.     In  such  case  the  Select-men  ought  to  as- 
n    the  amount  due  and  uncollected  on  said  tax  bill 
r.ch  person  is  deputed,  otherwise  they  will  not  know 
Miuch  he  is  to  account  for:  they  must  also  obtain  a 
•  arrant,  or  procure  the  justice  who  issued  the  first 
.  r  the  direction,  and  direct  it  to  the  person   deputed 
;  Select-men.     The  Select-men  are  to  see  that  all 
uid  state  taxes  are  collected  and  paid   into  the  treas- 
:ry  according  to  law.     If  the  collector  of  any  town  tax 
,hall  neglect  or  fail  to  collect  and  pay  the  same  by  the  time 
limited,  it  is  the  duty  of  the  Select-men  to  demand  the  ar- 
rearages of  such  collector,  and  on  failure  of  payment,  thev 
must  apply  to  a  justice  of  the  peace  for  an  execution  against 
him  for  the  amount  of  such  arrearage,  and  such  justice  is 
empowered  to  grant  the   same.     If  the   collector  of  amr 
state  tax  shall  fail  to  collect  and  settle  with  the  state  treas- 
urer for  the  same  by   the  time  appointed,  the  Select-men 
are  authorized  to  commence  a  suit  against  such  collector 
in  the  name  of  the  town  to  recover  what  remains  unpaid 
of  such  tax  ;  and  the  whole  estate  of  such  collector  at  the 
time  of  the  commencement  of  such  suit  is  holden  for  thf 
same. 

Form  of  Execution  against  a  Collector. 
To  the  sheriff  &.c.     Whereas  on  the         day  of          the 
town  of  in  lawful  town  meeting  assembled,  granted  a 

tax  of  cents  on  the  dollar  on  the  list  of  the  y^ar 

on  all  the  inhabitants  of  said  town,  payable  on  the  day- 
of  A.  D.  ;  and  whereas  A.  B.  was  at  said  meeting 
appointed  a  collector  (or  one  of  the  collectors)  of  said 
tax  ;  and  the  Select-men  having  made  out  a  rate  bill,  or 
bills  under  their  hands,  specifying  the  proportion  each  in- 


281 

habitant  of  said  town  was  to  pay  of  said  tax,  and  obtained 
a  warrant  in  due  form  of  law  directed  to  said  A.  B.  annex- 
ed to  said  rate  bill  (or  one  of  said  rate  bills  where  there 
is  more  than  one  collector)  him  commanding  to  levy  and 
collect  of  the  several  persons  named  in  said  rate  bill,  their 
proportion  of  said  tax,  as  specified  in  such  rate  bill,  and  pay 
the  same  to  the  treasurer  of  said  town,  on  or  before  the 
said  day  of  A.  D.  ;  and  the  said  collector  hav- 
ing neglected  and  failed  to  collect  and  pay  over  said  tax, 
(or  such  part  thereof  as  was  contained  in  said  rate  bill)  by 
the  day  the  same  was  payable,  the  Select-men  of  said 
town  on  the  day  of  made  demand  of  said  negligent 
collector  for  the  arrearages  of  said  tax  amounting  to  the 
sum  of  dollars  and  cents,  which  he  neglected  and 

refused  to  pay,  whereupon  the  said  Select-men  made  ap- 
plication to  J.  P.  justice  of  the  peace  for  the  county  of 
for  an  execution  against  said  collector  for  said  arrear- 
age of  said  tax  :  Wherefore,  by  virtue  of  the  statute  in 
such  case  provided,  and  by  the  authority  of  the  State  of 
Connecticut,  you  are  hereby  commanded,  that  of  the  goods, 
chattels  or  lands  of  the  said  A.  B  within  your  precincts, 
you  cause  to  be  levied,  and  the  same  being  disposed  of  or 
appraised,  as  the  law  directs,  paid  and  satisfied  unto  the 
treasurer  of  said  town  of  ,  the  aforesaid  sum  of 
dollars  and  cents,  with  seventeen  cents  more  for  this 
writ,  and  also  for  your  fees.  And  for  want  of  such  goods 
&,c.  (the  same  as  in  other  executions.) 

3.  The  Select-men  are  overseers  of  the  poor,  and  it  is 
their  duty  to  provide  necessary  food,  clothing,  firewood, 
and  other  articles  necessary  to  their  subsistence,  for  all 
paupers  belonging  to  the  town,  and  to  draw  orders  on  the 
treasurer  therefor  ;  and  to  exhibit  to  the  town  an  account 
of  such  expenditure  when  required  (c).  This  is  the  most 
important  branch  of  the  duties  of  Select-men,  and  should 
be  discharged  with  a  proper  regard  to  economy  or  the  in- 
terests of  the  town,  and  the  claims  of  humanity  in  behalf 
of  the  indigent,  the  distressed,  and  the  wretched  ;  of  whom, 
if  many  are  the  victims  of  intemperance,  idleness,  and 
vice,  some  at  least  are  the  subjects  of  misfortune,  sickness 
and  adversity.  The  paupers  of  a  town  are  subject  to  the 

(c)  St.  370. 

24* 


282 

orders  and  authority  of  the  Select-men,  who  may  remove 
them  to  such  places  in  or  out  of  the  town,  and  provide  for 
them  as  they  please,  subject  to  the  direction  of  the  town. 
The  paupers  are  entirely  dependent  on  the  Select-men,  for 
no  person  is  entitled  to  pay,  for  any  supply  furnished  to  a 
pauper  contrary  to  the  express  direction  of  the  Select-men  ; 
nor  in  any  case  for  any  thing  furnished  to  a  pauper  before 
notice  is  given  to  one  or  more  of  the  Select-men,  where 
such  pauper  resides,  of  his  condition  ;  but  after  such  no- 
tice, if  the  Select-men  neglect  to  take  care  and  provide  for 
such  pauper,  such  person  may  furnish  him  with  ne- 
eessaries,  which  must  be  paid  for  by  the  town  where  such 
pauper  resides,  unless  the  Select-men  gave  such  person 
express  orders  not  to  furnish  such  necessaries. 

The  Select-men  are  not  only  to  oversee  and  provide  for 
the  paupers  of  the  town,  but  likewise  for  paupers,  or  per- 
sons residing  within  the  town  who  are  so  poor  as  to  be  un- 
able to  support  themselves,  although  not  inhabitants  of  such 
town.  If  the  Select-men  of  any  town  have  knowledge  of 
any  person  residing  in  such  town  not  being  an  inhabitant 
thereof,  who  is  unable  to  support  himself,  and  is  in  want 
of  supplies  for  his  subsistence,  and  shall  neglecf  to  furnish 
the  same,  for  every  such  offence,  each  Select-man  forfeits 
the  sum  of  seven  dollars  to  the  person  who  may  prosecute 
for  the  same.  It  is  singular  that  there  should  be  a  for- 
feiture for  not  providing  for  paupers  not  belonging  to  the 
town  and  none  for  neglecting  to  provide  for  those  that  do 
belong  to  the  town,  although  if  they  decline  furnishing  sup- 
plies and  forbid  others  doing  it,  a  pauper  must  starve,  un- 
less subsisted  by  charity. 

Where  a  pauper  belonging  to  one  town,  is  in  another 
town  and  becomes  chargeable,  the  Select-men  of  the  latter 
town  must  give  notice  to  the  town  to  which  such  pauper 
belongs,  of  his  condition,  within  five  days  after  they  ascer- 
tain the  town  to  which  he  belongs,  if  such  town  is  within 
twenty  miles,  and  in  other  cases  in  fifteen  days  ;  and  where 
the  Select-men  have  knowledge  of  the  town  to  which  such 
pauper  belongs,  and  shall  neglect  to  give  notice  within  the 
periods  aforesaid,  such  {own  shall  not  be  liable  for  any 
expense  for  the  time  of  such  neglect  ;  and  such  town  shall 
not  be  liable  to  pay  at  a  greater  rate  than  one  dollar  per 
week  for  the  support  of  a  pauper  in  lieu  of  all  expense6 


283 

Notice  may  be  given  by  putting  a  letter,  signed  by  one  or 
more  of  the  Select-men  of  the  town  where  the  pauper  i-. 
into  the  mail,  directed  to  the  Select-men  of  the  town  where 
such  pauper  belongs,  if  there  is  a  poet-office  in  such  toxvn, 
otherwise  directed  to  be  left  at  the  post-office  nearest  to 
such  town  ;  such  notice  shall  be  considered  a?  having  been 
given  at  the  time  the  letter  would  be  received  by  the  or- 
dinary course  of  the  mail  (</).  Actual  notice  in  writing, 
conveyed  in  any  other  way,  is  sufficient.  The  notice  must 
state  the  name  of  the  pauper,  and  that  he  is  chargeable  : 
if  he  has  a  family  it  is  not  necessary  to  state  the  names  of 
the  members  of  his  family,  but  generally  that  the  pauper 
and  his  family  are  chargeable  for  their  support.  The  ex- 
penses incurred  by  one  town  for  the  support  of  .1  pauper 
belonging  to  another,  where  the  aforesaid  provisions  of  the 
law  have  been  complied  with,  may  be  recovered  by  a  pro- 
per action  at  common  law. 

When  any  person  having  a  legal  settlement  in  any  town 
in  this  state  shall  remove  out  of  the  same  and  gain  a  settle- 
ment in  any  other  state,  and  shall  afterwards  return  to  this 
state,  and  become  chargeable  for  his  support,  the  town 
where  he  had  his  last  settlement  in  this  state  shall  be  lia- 
ble to  support  him. 

The  principal  difficulty  concerning  paupers,  has  arisen 
from  questions  as  to  their  right  of  inhabitancy  or  settlement ; 
but  the  laws  relating  to  this  subject  now,  are  more  intelligi- 
ble and  simple  than  they  were  formerly  ;  yet  there  can  be 
no  general  principles  but  which  in  their  application  may  in 
some  instances  occasion  doubts  and  difficulties.  The  law 
relative  to  the  acquiring  of  a  right  of  inhabitancy,  or  a  leg;il 
settlement,  in  any  town  in  this  state,  makes  a  distinction  be- 
tween foreigners,  persons  who  are  inhabitants  of  any  other 
state,  and  such  as  have  a  settlement  in  a  different  town  in 
this  state.  Foreigners,  or  persons  who  are  not  inhabitants 
of  this,  or  any  of  the  other  states,  cannot  acquire  a  settle- 
ment in  any  town  in  this  state,  unless  admitted  by  a  vote  of 
the  inhabitants  of  such  town,  or  by  consent  of  the  Select- 
men and  civil  authority  of  such  town,  or  by  being  appointed 
to,  and  the  execution  of,  some  public  office.  It  would 
seem  that  the  appointment  to  an  office  would  not  be  suffi- 

(d)  St.  370. 


284 

cient ;  but  that  the  person  must  execute  the  duties  of  the 
office  to  which  he  may  be  appointed  ;  yet  whether  the  ap- 
pointment is  made  by  the  town,  the  general  assembly,  or 
the  people,  does  not  appear  to  be  material.  A  person  who 
is  an  inhabitant  of  any  of  the  United  States,  except  this, 
may  gain  a  settlement  by  any  of  the  requisites,  whereby  a 
foreigner  may  acquire  a  settlement,  and  also  by  the  posses- 
sion in  his  own  right  in  fee,  of  real  estate  situated  in  this 
state,  of  the  value  of  three  hundred  and  thirty-four  dollars, 
free  from  encumbrance,  and  by  one  year's  residence  in  the 
town  next  preceding  the  time,  he  may  claim  to  be  admitted 
an  inhabitant.  If  his  title  to  real  estate  is  by  deed,  it  must 
have  been  recorded  in  the  proper  office,  at  full  length,  at 
least  one  year  before  he  can  be  admitted.  A  person  being 
an  inhabitant  of  any  town  in  this  state,  may  gain  a  settlement 
in  any  other  town,  by  any  of  the  requisites  whereby  a  for- 
eigner may  acquire  a  settlement  ;  and  likewise  by  posses- 
sing for  the  term  of  one  year,  real  estate  in  his  own  right  in 
fee,  situated  in  the  town  where  he  may  claim  to  have  a  set- 
tlement, of  the  value  of  one  hundred  dollars,  free  from  en- 
cumbrance ;  or  by  a  residence  in  a  town  for  six  years,  he 
supporting  himself  and  family,  if  any  he  has,  during  that  pe- 
riod, and  also  paying  all  taxes  for  which  he  is  legally  liable, 
and  which  may  be  demanded  of  him  by  the  collectors  there- 
of. The  settlement  of  a  married  woman  is  the  same  as  that 
of  her  husband,  and  the  settlement  of  minor  children  fol- 
lows that  of  their  father.  Neither  a  married  woman  nor 
minor  children  can  acquire  a  settlement  in  their  own  right 
by  residence,  as  they  are  not  persons  sui  juris,  and  posses- 
sing the  legal  capacity  of  doing  the  acts  required  to  be  done  ; 
but  a  feme  covert  may  obtain  a  settlement  by  the  residence 
of  her  husband,  and  minor  children  by  the  residence  of  their 
father,  although  they  do  not  reside  themselves  in  the  same 
town.  A  person  who  resides  in  a  town  apart  of  six  years, 
whilst  a  minor,  and  the  residue  after  he  is  of  full  age,  does 
not  gain  a  settlement  (a).  A  ward  residing  with  his  guar- 
dian does  not  gain  a  settlement  in  the  right  of  his  guardian 
by  such  residence  (6.)  It  has  been  decided  by  the  supe- 
rior court,  that  an  idiot,  although  of  age,  did  not  acquire  a 
settlement  in  her  own  right,  but  in  the  right  of  her  mother 

(a)  4  Day,  1 89.        (fc)  1  Root,  1 31 . 


285 

by  residence  (c).  By  authority  of  this  decision,  and  from 
the  express  terms  of  the  statute,  there  can  be  no  doubt 
that  minor  children,  having  no  father  living,  may  gain  a  set- 
tlement in  right  of  their  mother  by  residence  with  her  in 
a  town  six  years  ;  and  a  bastard  child  may  gain  a  settlement 
in  right  of  its  mother  by  her  residence. 

All  persons  born  in  this  state,  whose  parents  have  a 
settlement  in  any  town  in  the  state,  become  inhabitants  of 
the  state  ;  the  settlement  of  an  illegitimate  child  follows 
that  of  its  mother,  if  she  has  a  settlement  in  any  town  in 
this  statCj  if  not,  its  settlement  is  to  be  in  the  town  of  its 
birth  (d). 

A  married  woman  cannot  gain  a  settlement  by  residence 
in  her  own  right,  but  where  the  marriage  is  \oitl  she  may 
gain  a  settlement.  Where  a  woman  having  a  settlement  in 
a  (own  in  this  state  married  an  inhabitant  of  another  state, 
and  they  removed  into  another  town,  and  cohabited  togeth- 
er as  husband  and  wife,  the  marriage  being  void,  she  gained 
a  settlement  in  her  own  right  by  such  residence  (e)  A 
lunatic,  needing  support,  may  be  removed  to  the  town 
where  she  has  a  settlement,  notwithstanding  she  has  a  re- 
versionary interest  in  fee  in  the  town  where  she  resides  (/). 
Where  the  parents  of  a  pauper  who  was  a  minor,  were  di- 
vorced by  an  act  of  the  legislature,  and  the  mother  appoint- 
ed guardian  to  such  minor,  it  was  held  that  such  pauper's 
settlement  acquired  in  her  father's  right  was  not  affected 
thereby  (g).  Where  "all  the  inhabitants"  living  within 
certain  limits,  were  incorporated'  into  a  distincttown,  it  was 
held  that  an  infant  pauper,  residing  within  those  limits, 
having  a  settlement  elsewhere  in  right  of  her  father,  was 
not  included  (/i).  The  settlement  of  a  child  of  a  female 
slave,  born  after  the  first  of  March,  1784,  is  in  the  place  of 
its  birth,  as  it  could  derive  no  right  of  settlement  from  its 
mother,  owing  to  her  being  a  slave,  nor  is  her  settlement 
changed  by  her  mother's  gaining  a  new  settlement  in  anoth- 
er town,  as  a  slave  cannot  communicate  the  right  of  settle- 
ment to  her  children  (z).  It  has  been  decided  that  a  per- 
son having  a  settlement  in  one  town  in  this  state,  acquired 
a  settlement  in  another,  by  purchasing  therein  an  estate  in 
fee,  of  greater  value  than  one  hundred  dollars,  notwith- 

(c)  1  Hoot,  196.      (<7)  2  Con.  Rep.  18.       (*)  1  Day,  212.       (/)  ib. 
(g)  2  Con.  Rep.  20.    (A)  ib.     (i]  ib.  355. 


286 

standing  the  execution  at  the  same  time  of  a  mortgage  deed 
to  the  grantor,  to  secure  the  principal  part  of  the  purchase 
money  (  f)  ;  but  this  decision  has  been  overruled  by  the 
legislature,  as  it  is  now  expressly  provided  by  the  statute, 
that  theest  ite  must  be  free  from  encumbrance,  to  enable  a 
person  to  acquire  a  residence  thereby. 

Persons  born  in  this  state,  of  parents  who  are  foreigners, 
it  would  seem  acquire  a  settlement  in  the  town  where  they 
are  born,  but  that  those  born  in  this  state  of  parents  having 
a  settlement  in  any  other  state,  would  not  acquire  a  settle- 
ment in  the  town  where  they  are  born,  but  that  their  set- 
tlement would  follow  that  of  their  parents.  But  no  person 
born  in  this  state,  can  become  chargeable  to  the  state,  and 
if  a  person  born  in  this  state,  of  parents  who  are  inhabitant* 
of  another  state,  becomes  chargeable  to  any  town  in  this 
state,  such  town  cannot  be  reimbursed  from  the  treasury  of 
the  state,  nor  can  they  have  a  claim  upon  the  town  where 
such  pauper  was  born  ;  but  he  may  be  removed  to  the  state 
where  his  parents  belonged  at  the  time  of  hi-  birth,  he  ha- 
ving acquired  a  settlement  there  in  their  risjht. 

A  woman  having  a  settlement  in  any  town  in  this  state, 
who  marries,  and  her  husband  having  a  settlement  in  a  dif- 
ferent town,  she  loses  her  settlement  and  acquires  one  in 
his  right;  if  her  husband  has  no  settlement  in  this  state, 
but  is  an  an  inhabitant  of  any  of  the  other  states,  she  loses 
her  setttement  in  this  state  during  the  marriage,  and  ac- 
quires a  settlement  in  the  right  of  her  husband  in  the  state 
where  he  belongs,  and  may  be  conveyed  there  with  him 
and  if  her  husband  be  a  foreigner,  she  loses  her  settlement, 
without  acquiring  any  in  the  risihtof  her  husband.  But  in 
either  case,  it  would  seem  that  on  the  death  of  her  husband, 
if  she  return  to,  or  has  not  left,  this  state,  her  former  set- 
tlement will  revive,  and  she  will  become  chargeable  to  the 
town  where  she  belonged  at  the  time  of  her  marriage  ;  as  it 
is  provided  that  in  all  cases  where  a  person  once  had  a  set- 
tlement in  any  town  in  this  state,  and  shall  have  removed 
into  another  state,  and  have  gnined  a  settlement  therein, 
and  shall  return  to  this  state  and  become  chargeable,  he 
must  be  supported  by  the  town  to  which  he  formerly  belong- 
ed (c).  And  the  reason  is  the  same,  where  a  woman  hav- 

(/)  2  Con.  Rep.  600.        (e)  Stat.  371. 


287 

ing  a  settlement  in  any  town  in  this  state,  loses  the  saiui. 
and  gains  a  settlement  in  another  state  l>y  marriage,  without 
having  removed  out  of  this  state,  that  on  the  death  of  her 
husband  her  settlement  should  revive. 

In  order  to  acquire  a  settlement  by  residence,  a  person 
must  reside  six  years  in  succession,  and  support  himself  md 
family,  pay  all  taxes  which  may  lawfully  accnre  against  him 
and  be  demanded  of  him.  A  temporar.-  absence,  or  an  ab- 
sence on  business  for  a  length  of  time,  if  his  family  is  in  the 
town,  and  he  intends  t»  return  there,  will  not  prevent  his 
acquiring  a  settlement.  So  if  a  person  without  a  family  is 
absent  from  a  town  at  different  periods  for  several  months 
at  a  time,  on  business,  without  intending  to  remove  from 
such  town,  and  still  considering  the  same  as  the  place  of  his 
residence,  his  absence  will  not  prevent  his  acquiring  a  set- 
tlement. 

Mariners,  who  make  their  home  in  a  sea  pert  town,  and 
sail  from,  and  return  to  the  same,  are  considered  as  re- 
siding in  such  town,  so  as  to  acquire  a  settlement. 

There  are  a  class  of  paupers  who  have  not  acquired  a 
settlement  in  any  town  in  the  state,  and  who,  nevertheless, 
are  not  chargeable  to  the  state;  the  town  where  such  pau- 
pers may  become  chargeable,  although  they  h;ive  no  settle- 
ment in  the  same,  have  no  claim  for  the  supplies  furnished, 
as  the  state  is  not  liable  to  reimburse  the  moneys  expend- 
ed, nor  is  any  other  town,  as  such  paupers  have  no  settle- 
ment in  any  town  in  the  state.  It  is  provided  by  statute 
that  no  person  born  in  this  state  or  in  an  adjoining  state, 
and  that  no  person  who  at  any  time  previously  had  a  settle- 
ment in  any  town  in  this  state,  shall  be  chargeable  to  the 
state,  and  that  no  town  shall  be  reimbursed  from  the  state 
treasury  any  expenses  incurred  for  such  paupers  (a).  Per- 
sons born  in  this  state,  of  parents  who  are  inhabitants  of 
another  state,  acquire  no  settlement  in  the  town  where 
they  were  born,  but  they  have  a  settlement  in  right  of  their 
parents,  in  the  state  where  they  belong;  yet  if  they  become 
chargeable  to  any  town,  such  town  cannot  be  reimbursed 
by  the  state.  And  a  person  born  in  this  state,  of  parents 
who  are  foreigners,  cannot  be  chargeable  to  the  state, 
whether  they  acquire  a  settlement  in  the  town  where  they 

(a)  St.  371 


28$ 

were  born  or  not.  A  person  born  in  any  adjoining  state, 
and  who  becomes  chargeable  to  any  town  in  this  state,  such 
town  cannot  be  reimbursed  from  the  state  treasury,  and 
will  have  no  claim  for  the  support  of  such  person,  unless 
he  has  by  residence  acquired  a  settlement  in  some  other 
town  in  this  state.  The  expression  "adjoining  state," 
must  not  be  construed  to  mean  any  of  the  other  states,  but 
a  state  actually  adjoining  this,  as  the  reason  of  the  law  is. 
that  it  is  the  duty  of  the  town  where  such  persons  may  re- 
side, aud  who  may  be  likely  to  become  chargeable,  to  cause 
them  to  be  removed  to  the  state  where  they  belong,  but 
this  reason  does  not  apply  to  distant  states,  as  the  same  fa- 
cility of  removing  persons  to  them  does  not  exist.  Persons 
who  have  once  had  a  settlement  in  any  town  in  this  state, 
and  have  lost  the  same,  without  acquiring  a  settlement  in 
any  other  town,  if  they  become  chargeable,  the  expense 
must  be  home  by  the  town  where  the  same  is  incurred, 
and  such  town  cannot  be  reimbursed  from  the  state  treasu- 
ry. If  a  woman,  having  a  settlement  in  this  state,  marries 
a  foreigner,  or  an  inhabitant  of  another  state,  whereby  she 
loses  her  settlement,  if  they  become  chargeable,  he  will 
belong  to  the  state  poor,  but  she  will  not,  and  her  support 
must  be  borne  by  the  town  where  they  reside,  and  which 
may  furnish  the  same.  It  is  also  provided  that  if  any  per- 
son not  an  inhabitant  of  this  state,  shall  reside  six  years  in- 
clusive in  any  town  in  the  state,  without  becoming  chargea- 
ble to  the  state,  any  expense  which  may  be  incurred  by- 
such  town  for  the  support  of  such  person,  he  still  residing 
therein,  must  be  borne  by  such  town  (r).  But  if  such  per- 
son, duringsaid  term  of  six  years,  has  received  aid  from  the 
town,  he  will  not  have  acquired  a  settlement  therein,  yet 
if  he  continues  to  reside  there,  the  town  will  be  liable  for 
his  support  ;  but  if  he  should  remove  from  such  town  and 
become  chargeable  to  another  town,  the  latter  town  would 
have  no  claim  upon  the  first,  and  such  town  might  be  reimi 
bursed  their  expenses  from  the  state. 

The  differeuce  between  a  person's  having  a  settlement  ia 
a  town,  and  the  town  being  liable  for  his  support  whilst  he 
may  reside  therein  without  his  havingacqcired  a  settlement, 
is  this  :  that  where  a  pauper  has  a  settlement  in  a  town. 

(c)  Stat.  372. 


289 

charged  with  his  maintenance,  whether  he  re- 
side within  the  town  or  not,  and  may  be  sued  for  expenses 
incurred  by  any  other  town  for  the  support  of  such 
person  ;  but  in  the  latter  case,  the  town  is  only  liable 
for  his  support  whilst  residing  in  the  same,  or  in  other 
words,  is  only  deprived  of  its  claim  upon  the  state,  to  have 
its  expenses  refunded  ;  but  if  such  person  removes  out  of 
such  town,  it  is  not  liable  for  any  expense  incurred  by  any 
other  town  for  the  support  of  such  pauper.  Where  a  per- 
son born  in  an  adjoining  state,  or  in  this  state,  of  parents 
who  are  inhabitants  of  another  state,  or  where  o  married 
woman,  or  other  person  who  has  once  had  a  settlement  in 
some  town  in  this  state,  and  has  lost  the  same,  without  ac- 
quiring a  settlement  in  any  other  town  in  the  state,  if  they 
become  chargeable  to  any  town,  where  they  may  reside, 
such  town  will  be  liable  for  their  support,  although  they 
have  acquired  no  settlement  therein,  during  their  residence 
in  the  same.  But  such  persons,  and  all  other  persons  not 
inhabitants  of  any  town  in  this  state,  may  be  removed  either 
into  the  state  where  they  belong,  or  if  they  have  resided  in 
any  other  town  in  this  state  they  may  be  removed  to  the 
town  where  they  last  resided  and  made  it  their  home  in 
this  state.  And  such  persons  may  be  removed  either  to 
another  town  in  which  they  have  resided  in  this  state,  or 
into  any  other  state,  at  any  time  within  six  years  after  their 
coming  into  any  town  in  this  state,  whether  they  have  be- 
come chargeable  to  such  town  or  not.  But  if  a  person  who 
has  a  settlement  in  any  town  in  this  state,  removes  into  any 
other  town,  he  cannot  be  removed  from  such  town,  to  the 
town  where  he  belongs,  unless  he  becomes  chargeable 
within  six  years  next  after  hi*  coming  into  the  town  ;  nei- 
ther is  he  liable  to  be  warned  to  depart  such  town. 

Where  a  person  is  chargeable  in  any  town  in  this  state, 
who  has  a  settlement  in  any  other  town  in  the  same,  he 
may  be  removed  on  application  of  the  Select-meji  of  the 
town  where  he  is  chargeable,  to  the  civil  authority,  or  any 
two  of  them,  of  such  town,  who  are  authorised  to  grant 
a  warrant  directed  to  any  constable  of  the  town,  command- 
ing them  to  transport  such  pauper  to  the  town  where  he  be- 
longs. A  person  who  is  an  inhabitant  of  any  other  state, 
may  be  removed  out  of  this  state,  by  a  warrant  issued  by 
the  civil  authority,  or  a  majority  of  them,  .of  the  town 
25 


290 

where  he  resides,  on  application  of  the  Seclect-men  of  such 
town.  1  he  civil  authority  are  not  in  either  case  to  grant  a 
warrant  as  a  matter  of  course,  on  application  of  the  Select- 
men ;  but  they  are  to  exercise  their  discretion  and  judg- 
ment on  the  subject,  and  may  refuse  it  ifthey  think  proper. 
A  form  of  warrant  in  these  two  cases  has  been  given  at 
page  32. 

Form  of  Warrant  for  removing  a  person  who  is  an  inhabitant 
of  another  Stale  to  a  town  in  this  State,  -where  he  has  prev- 
iously resided. 

To  A.  B.  of  in  the  county  of  Constable  of  said  town 
Greeting. 

Whereas  C.  D.,  E.  F.  and  G.  H.  Select-men  of  the  said 
town  of  this  day  made  application  to  the  undersigned 
justices  of  the  peace,  being  a  majority  of  the  civil  authority 
of  said  town,  stating  that  O.  P.  is  now  residing  in  said  town 
with  his  family,  and  has  resided  in  said  town  since  the 
day  of  and  that  the  said  O.  P.  is  an  inhabitant  of  the 
state  of  and  not  an  inhabitant  of  any  town  in  this  state, 

and  that  heretofore  and  immediately  preceding  his  coming 
into  said  town  of  he  resided  and  made  his  home  in  the 
town  of  in  this  state  :  Wherefore,  by  authority  of  the 
state  of  Connecticut,  and  by  virtue  of  the  statute  in  such 
case  provided,  you  are  commanded  to  take  the  said  O.  P. 
and  his  family,  consisting  of  his  wife  and  children,  and 
forthwith  (or  as  soon  as  they  can  conveniently  be  removed) 
convey  and  transport  them  into  said  town  of  in  the  coun- 
ty of  in  thi*  ?tate,  where  they  last  resided,  previously 
to  their  removing  into  the  said  town  of  .  Hereof  you 
are  not  to  fail,  but  due  service  and  return  make. 

Dated,  &c.  Signed  by  a  majority  of  the  justices  of 

the  peace  of  the  town. 

A  person  not  an  inhabitant  of  this  state,  residing  in  any 
town  therein,  is  liable  to  be  warned  to  depart  the  same. — 
This  may  be  done  by  the  Select-men,  on  their  own  author- 
ity, or  by  a  wai  rant  granted  by  a  justice  of  the  peace.  The 
warning,  if  by  the  Select-men,  may  be  in  writing  or  verbal. 

Warrant. 
To  either  Constable,  &c. 

Whereas  A.  B.  now  residing  in  the  town  of  in   the 


291 

county  of        is  not  an  inhabitant  of  this  state,  and  the  said 

A.  B.  has  become  chargeable,  or  is  likely  to  become  charge- 
able, to  said  town  of         .     Wherefore,  you   are  hereby 
commanded  forthwith  to  give  notice,  and  warn  the  said  A. 

B.  to  depart  forthwith  from,  and  leave  said  town  of 

with  his  family,  on  penalty  of  the  law  in  such  case  provi- 
ded.    Hereof,  &c. 

A  person  who  has  been  warned  out  of  a  town,  forfeits  one 
dollar  and  sixty-seven  cents  for  every  week  he  continues 
in  such  town  after  such  warning  ;  and  if  convicted  and  lined, 
and  he  has  no  estate  to  satisfy  the  same,  he  is  liable  to  be 
whipped  ten  stripes  on  the  naked  body,  unless  he  depart 
from  the  town  within  ten  days  after  sentence,  and  reside  no 
more  therein,  without  leave  of  the  Select-men.  But  ap- 
prentices, and  servants  bought  for  a  time,  are  not  liable  to 
be  warned  to  depart  from  a  town,  or^to  be  fined  or  whipped 
for  refusing  so  to  do.  And  if  any  person,  not  an  inhabit- 
ant of  this  state,  is  conveyed  out  of  the  same  as  aforesaid, 
and  returns  into  the  town  from  where  he  was  sent,  to  abide 
therein,  he  may  be  warned  to  depart,  and  if  he  fails  so  to 
do,  he  may  be  whipped  on  the  naked  body  not  exceeding 
ten  stripes,  and  again  sent  away,  and  so  dealt  with  as  often 
as  he  may  return  to  said  town. 

There  is  a  severity  and  harshness  in  the  statute  relative 
to  inhabitants  of  other  states,  who  come  to  reside  in  this 
state,  which  is  little  consistent  with  feelings  of  humanity,  or 
with  that  spirit  of  comity,  which  ought  to  characterize  the 
conduct  and  the  laws  of  different  states,  with  relation  to  each 
other.  And  it  is  the  more  extraordinary  that  these  provi- 
sions should  be  general,  and  not  restricted  or  qualified,  so 
as  to  be  applicable  only  to  persons  who  have  become  charge- 
able, or  who  are  liable  to  become  chargeable  to  the 
town  where  they  may  reside.  As  the  law  now  is,  any 
inhabitant  of  another  state,  however  wealthy  or  respect- 
able, who  removes  into  any  town  in  this  state,  unless  he 
acquires  a  settlement  therein,  is  exposed  to  be  warned 
to  depart  from  such  town,  and  liable  to  a  fine  of  one  dollar 
and  sixty-seven  cents  a  week,  if  he  continues  to  remain 
therein  after  such  warning ;  and  moreover,  is  also  liable 
even  without  any  warning  or  notice,  to  be  f  rcibly  seized 
by  a  constable  and  conveyed  out  of  the  state.  It  is  no  ex- 


tenuation  of  the  barbarity  of  this  statute,  to  say  that  it  m 
never  applied,  except  to  persons  who  have  or  are  likely  to 
become  chargeable  ;  but  this  is  rather  an  evidence  of  the 
injustice  and  inexpediency  of  the  law.  It  is;  however, 
some  excuse,  that  most  of  the  other  states  have  similar 
statutes. 

If  any  individual  hire  any  person  who  is  not  an  inhabit- 
ant of  this  state,  who  comes  to  reside  in  any  town  therein. 
Or  let  any  house  or  land  to  such  person,  such  individual,  un- 
less he  gives  security  to  the  acceptance  of  the  Select-men 
and  civil  authority  of  such  town,  to  save  the  same  harmless, 
from  all  expense  that  may  be  occasioned  thereby,  forfeits 
to  the  treasury  of  such  town,  one  dollar  and  sixty-seven 
cents  per  week,  for  every  week  he  may  hire  or  harbour 
such  person,  or  let  an  estate  as  aforesaid.  A  separate  ac- 
tion cannot  be  brought  on  this  statute  for  the  each  week's 
forfeiture,  but  an  action  must  be  brought  for  the  whole  sum 
which  has  become  forfeited  and  accrued  when  the  same  is 
instituted.  A  bond  or  note  in  common  form,  may  be  taken 
as  security,  with  a  condition  annexed,  that  the  obligor  will 
indemnify  such  town  from  all  expense  on  account  of  such 
person  or  his  family.  Any  individual  who  may  bring  any 
person  who  is  poor  and  indigent  into  any  town  in  this  state 
of  which  such  person  is  not  an  inhabitant,  and  leave  them 
therein,  incurs  a  forfeiture  for  every  person  so  brought  and 
left,  of  sixty-seven  dollars,  to  the  use  of  such  town. 

No  person  who  is  unable  to  support  himself  and  family, 
can  become  chargeable  to  the  public,  that  has  relation- 
standing  in  ihe  degree  or  line  of  father  or  mother,  grand- 
father and  grand  mother,  children  and  grand  children,  who 
are  of  sufficient  ability  to  provide  for  and  support  such  poor 
relations.  If  they  neglect  or  refuse  to  provide  such  sup- 
port, application  may  be  made  to  the  county  court  of  the 
county  where  such  indigent  person  resides,  by  the  Select- 
men of  the  town,  wherein  he  is  resident,  or  by  one  or  more 
of  such  relations,  where  a  part  of  those  standing  in  the 
same  relation,  refuse  to  contribute  towards  the  support  of 
such  indigent  relation.  Where  a  person  dies,  leaving  a 
widow,  and  no  children,  his  estate,  both  real  and  personal. 
is  liable  for  the  support  of  such  widow  during  her  widow- 
hood, in  case  she  become  impotent  and  unable  to  support 
herself,  and  there  is  no  person  liable  by  law  to  support  her. 


293 

of  sufficient  ability  (i).  Where  there  are  chiMren  <>r  pa- 
rents who  are  of  sufficient  ability,  grand  children  or  grand 
parents  cannot  be  called  upon.  Where  there  are  several 
children  or  grand  children,  who  are  able,  they  must  contri- 
bute in  equal,  or  in  such  proportions  as  may  be  reasona- 
ble, with  reference  to  their  relative  ability  and  circumstan- 
ces, and  if  any  of  them  refuse,  one  or  more  of  the  others 
m;iy  make  application  to  the  county  court,  which  may  order 
them  to  pay  towards  the  support  of  such  indigent  relation, 
such  sum  as  they  think  reasonable,  and  may  issue  execu- 
tion quarterly  therefor.  Sons  and  grand  sons,  in  law  or  by 
marriage,  are  not  liable  from  their  own  estates  to  support 
their  wives'  parents,  or  grand  parents. 

Form  of  application  or  petition  to  the  county  court  by  Select- 
men. 
To  the  honourable  County  Court,  &c. 

The  application  or  memorial  of  A.  B.,  C.  D.  and  E.  F., 
Select-men  of  the  town  of  in  the  county  of  respect- 
fully sheweth,  that  L.  M.  is  an  inhabitant  of  said  town  of 
and  that  by  reason  of  sickness,  he  has  become  poor  and  im- 
potent, and  wholly  unable  to  provide  for  himself  and  fami- 
ly ;  and  they  would  further  inform  your  honours,  that  O.  M. 
of  the  town  of  and  P.  M.  of  the  town  of  both  in  said 
county,  are  grand  children  of  the  said  L.  M.  and  of  sufficient 
ability  to  support  and  maintain  the  said  L.  M.  their  grand 
father,  but  that  the  said  O.  M.  and  P.  M.  and  each  of  them, 
wholly  neglect  and  refuse  to  provide  for  the  support  and 
maintainance  of  the  said  L.  M.  although  informed  of  his  in- 
digence and  want  of  support,  and  requested  by  us  to  furnish 
the  same,  whereby  the  said  L.  M.  has  become  chargeable, 
(or  is  likely  to  become  chargeable)  to  the  said  town  of 
And  your  memorialists  pray  your  honors  to  inquire  into  the 
facts  herein  stated,  and  if  found  true,  to  order  and  decree 
that  O.  M.  and  P.  M.  pay  and  contribute  such  sum  for  the 
support  of  the  said  L.  M.,  as  your  honours  may  deem  rea- 
sonable, or  that  in  some  other  way  your  honours  would 
grant  relief.  Signed  by  the  Select-men. 

Application  by  a  Relation. 
The  memorial  of  A.  B.  of        respectfully  shewing  that 

ft)  St.  278. 
25* 


294 

L.  B.  of  by  age  and  infirmities  has  become  poor,  and 
unable  to  support  himself,  and  that  C.  B.  and  E.  B.  both  of 
said  town  of  and  the  memorialist  are  children  of  the 

said  A.  B.  and  all  the  children  the  said  A.  B.  hath  now  living, 
and  that  the  said  C.  B.  and  E.  B.  are  each  of  them  of  suffi- 
cient ability  to  support  the  said  A.  B.  as  well  as  the  memo- 
rialist ;  but  that  they  have  neglected  and  refused,  and  do 
still  neglect  and  refuse  to  pay  or  contribute  towards  the 
support  of  the  said  L.  B.,  although  informed  of  his  destitute 
condition,  and  often  requested  so  to  do,  whereby  the  me- 
morialist has  had  to  bear  the  whole  burden  and  expense  of 
supporting  his  said  father  i  Wherefore  he  prays  your  hon- 
ours to  inquire  into  the  facts  herein  stated,  and  if  found  true, 
order  and  decree  that  the  said  C.  B.  and  E.  B.  pay  and  con- 
tribute such  sum  for  the  support  of  their  said  father,  L.  B., 
as  your  honours  may  deem  reasonable. 

Citation. 
To  either  Constable  of,  &c. 

By  authority  of  the  state  of  Connecticut,  you  are  hereby 
commanded  to  summons  C.  B.  and  E.  B.  of  the  town  of 
in  the  county  of  to  appear,  if  they  see  cause,  before  the 
county  court,  to  be  holden  at,  &c.  then  and  there  to  shew 
reasons,  if  any  they  have,  why  they  shall  not  contribute 
and  pay  a  reasonable  sum  towards  the  support  of  A.  B.  their 
said  father,  agreeably  to  the  prayer  of  the  foregoing  memo- 
rial :  Hereof  you  are  not  to  fail.  State  duty  of  thirty-four 
cents  is  paid  hereon.  J.  P.  Justice  of  the  Peace. 

The  several  towns  in  the  state  are  authorized  to  estab- 
lish work-houses  and  houses  of  correction  ;  to  erect  and 
provide  suitable  buildings,  with  cells  or  apartments  for  con- 
fining offenders  sentenced  thereto  ;  to  furnish  the  materials 
for  those  who  are  ordered  to  labour,  to  direct  the  kind  of 
labour,  and  to  make  all  necessary  regulations,  not  inconsist- 
ent with  the  laws  of  the  state  . 

The  Select-men  of  the  town  are  constituted  overseers  of 
the  work-house  established  therein  ;  and  it  is  their  duty  to 
appoint  a  master  or  keeper  of  the  same,  to  superintend 
such  house,  as  to  the  management,  labour  and  food  of  the 
prisoners,  to  see  that  the  laws  are  duly  executed,  that  the 
prisoners  are  suitably  provided  for,  and  not  exposed  to 


abuse  or  oppression,  and  at  least  once  in  three  months  to 
visit  such  workhouse.  If  the  master  is  guilty  of  any  mis- 
conduct, they  may  remove  him  and  appoint  another  in  his 
place  («). 

The  towns  are  also  authorized  to  establish  asylums  or  poor- 
houses,  for  the  admission  and  accommodation  of  the  poor 
of  such  town,  and  to  establish  by-laws  relative  to  the  per- 
sons to  be  admitted  into  such  houses,  and  for  ordering  and 
governing  the  same  ;  but  such  by-laws  must  not  be  contra- 
ry to  the  laws  of  the  state,  and  they  may  be  repealed  by  the 
superior  court,  if  by  said  court  they  are  deemed  unreason- 
able or  unjust.  The  Select-men  are  not  empowered  to 
establish  or  superintend  poor-houses,  but  the  town  must 
appoint  agenls  for  the  express  purpose  ;  but  the  Select- 
men may  be  appointed  agents.  Two  or  more  towns  may  unite 
in  establishing  poor-houses  (A).  Houses  of  correction  and 
poor-houses  may  be  connected  together  in  one  establishm<  nt, 
and  this  will  generally  be  done  when  either  are  erected. 
The  importance  of  such  establishments,  for  the  comfort  and 
better  regulation  of  the  poor,  for  economy,  and  for  the  pun- 
ishment and  correction  of  Ihe  idle,  the  profligate,  the 
vicious,  and  the  intemperate,  is  beginning  to  be  duly  appre- 
ciated. Confinement  and  labour  are  the  only  means  that 
afford  any  hope  of  correcting  such  offenders. 


CHAPTER  II. 

1.  The  Select-men,  or  the  major  part  of  them,  of  any 
town,  are  authorized  to  lay  out  public  highways,  or  private 
ways,  within  the  limits  of  such  town.  They  must  give  no- 
tice to  all  the  owners  of  land  through  which  the  road  is 
proposed  to  be  layed  out,  to  be  present,  if  they  see  cause, 
at  the  laying  out  of  such  road.  A  notice  in  writing  must  be 
left  at  the  usual  place  of  abode  of  each  of  the  owner?  of  the 
land  through  which  the  road  is  to  pass.  The  Select-men 
and  the  persons  interested,  may  agree  on  the  damage  done 
by  laying  out  said  way  ;  an.d  in  case  they  cannot,  the  Select- 
men must  apply  to  any  justice  of  the  county,  in  case  of  a 

(a)  St.  480.  (6)  St.  371. 


296 

private  way,  and  to  any  justice  of  any  other  town  in  the 
county,  incase  of  a  public  highway,  and  such  justice  may 
appoint  three  judicious  and  disinterested  freeholders,  who 
being  sworn  for  that  purpose,  must  estimate  and  assess  to 
each  person  injured,  the  damage  sustained  by  him  by  the 
laving  out  of  such  way.  Where  the  Select-men  lay  out  a 
public  highway,  the  expense  must  be  borne  by  the  town  ; 
but  in  case  of  a  private  way,  it  must  be  paid  by  the  persons 
applying  for  such  way,  if  the  same  is  for  their  use  only. 
A  survey  in  writing  must  be  made,  or  caused  to  be  made, 
by  the  Select  men,  and  signed  by  them,  containing  a  partic- 
ular description  of  such  way,  which  must  be  submitted  to  a 
lawful  town  meeting,  and  if  accepted  by  such  town,  it  must 
be  recorded  in  the  records  of  lands  of  the  same,  and  the 
damages  being  paid  according  to  the  agreement  or  estimate 
as  aforesaid,  to  the  persons  injured,  or  the  amount  thereof 
deposited  in  the  treasury  of  the  town  for  their  use,  such 
way  becomes  legally  layed  out  and  established,  if  a  public 
highway,  and  may  immediately  be  opened.  But  in  case  of 
a  private  way  layed  out  as  aforesaid,  if  any  person  through 
whose  land  the  same  passes,  declares  himself  aggrieved,  the 
way  cannot  be  opened  or  occupied  until  the  expiration  of 
twelve  months  after  the  way  was  layed  out,  that  such  per- 
son may  have  opportunity  to  apply  to  the  county  court  for 
relief,  and  also  time  to  secure  his  enclosure  (a). 

In  case  of  a  public  or  private  way  layed  out  by  Select- 
men, any  person  aggrieved  either  by  laying  out  the  way, 
or  the  assessment  of  the  damages,  may  within  eight  months, 
apply  to  the  county  court  for  relief.  The  Select-men  for 
the  time  being  of  such  town,  must  be  cited  to  appear  and 
shew  reason,  if  any  they  have,  why  the  relief  should  not 
be  granted.  The  county  court,  if  they  are  of  opinion  that 
the  way  is  not  of  common  convenience  and  necessity,  may 
set  aside  the  same  and  revoke  the  doings  of  the  Select- 
men, or  if  they  consider  the  damages  assessed  too  low,  they 
may,  on  application  therefor,  order  out  a  jury  to  re-assess 
the  same  (d). 

The  Select-men  may,  with  the  approbation  of  the  town, 
discontinue  any  public  or  private  way,  which  may  have 
been  layed  out  by  them  or  their  predecessors,  and  any  per- 

<«)  St.  268.  (d)  St.  271. 


297 

son  so  aggrieved  by  their  doings,  may  make  application  to 
the  county  court  for  relief,  in  the  same  manner  and  within 
the  same  time,  as  where  application  is  made  by  persons 
aggrieved  by  the  doings  of  Select-men  in  laying  out  ways ; 
and  the  Select-men  must  also  be  cited  in  the  same  man- 
ner (e). 

Form  of  Notice. 

To  A.  B.  of  .      You  are  hereby  notified  to 

appear  at  in  said  town,  on  the  day  of  at 

o'clock,  then  and  there  to  be  present  and  to  shew 
cause,  if  any  they  have,  why  a  public  highway  (or  private 
way)  shall  not  be  layed  out  by  the  subscribers,  Select-men 
of  said  town  of  ,  within  said  town,  as  follows,  viz.  com- 
mencing &c.  (describe  the  proposed  way.) 

g'  p'    ?  Select-men. 

Form  of  the  survey  and  laying  out  of  a  high  zvay. 
Be  it  remembered  that  on  the  day  of        A.  D. 

the  subscribers,  Select- men  of  the  town  of  in  the  coun- 
ty of  ,  having  given  notice,  in  writing,  by  leaving  the 
same  at  their  places  of  abode,  to  A.  R.,  C.  D.  and  E.  F., 
all  of  said  town  of  ,  and  G.  H.  of  the  town  of  , 
in  the  county  of  ,  owners  of  land  over  which  the  high- 
way hereinafter  described  is  layed  out,  to  be  present  at  the 
laying  out  of  the  said  way,  and  shew  reasons,  if  any  they 
have,  against  the  laying  out  of  the  said  highway,  and  the 
said  A.  B.,  C.  D.  and  E.  F.  having  been  present  and  their 
objections  fully  heard,  and  on  personal  view,  we  have  laid 
out  and  established,  and  do  hereby  lay  out  and  establish  a 
public  highway,  (or  private  way,  as  the  case  may  be,)  with- 
in said  town  of  ,  as  follows,  that  is  to  say,  (here  de- 
scribe the  highway  from  actual  survey,  giving  the  bounda- 
ries, lines  and  courses.)  And  the  subscribers  and  the  s;iid 
A.  B.  and  C.  D.  owners  of  hind,  over  which  said  highway 
is  laid,  agreed  and  estimated  the  damage  done  to  the  land 
of  the  said  A.  B.  by  the  laying  out  of  said  highway  at 
dollars,  and  that  done  to  the  land  of  the  said  C.  D.  at 
dollars  ;  and  being  unable  to  ngree  with  said  E.  F.  and  G. 
H.  as  to  the  damage  done  to  their  land,  by  laying  out  of 
said  way,  the  subscribers  applied  to  J.  P.  justice  of  the 
peace  for  said  county,  and  qualified  to  act  in  said  matter, 

(e)  St.  27.?. 


298 

who  thereupon  appointed  L.  M.,  O.  P.,  and  R.  R.,  all  ju- 
dicious and  disinterested  freeholders  of  the  town  of  , 
in  said  county  [they  must  not  belong  to  the  same  town  in 
case  of  ;i  public  highway]  to  estimate  and  assess  the  dam- 
ages sustained  by  the  said  E.  F.  and  G.  H.  by  the  laying 
out  of  said  highway,  and  said  freeholders  being  duly  sworn, 
by  said  justice,  and  having  notified  the  said  E.  F.  and  G.  H. 
to  be  present,  and  having  personally  viewed  said  land  and 
said  way,  as  laid  over  the  same,  did  estimate  and  assess 
the  damage  of  the  said  E.  F.  at  dollars,  and  the  damage 
of  the  said  G.  H.  at  dollars  ;  and  all  ot  which  said 

damages  have  been  paid  by  us,  from  the  treasury  of  said 
town  of 

[Signed  by  the  Select-men.] 
Certificate  of  the  Justice  which  should  accompany  the  Survey. 

H  county  ss.  day  of  A.  D.  :  then  on  appli- 
cation of  the  aforesaid  ,  Select-men  of  the  town  of 
I  appointed  L.  M.,  O.  P.  and  K.  R.,  all  judicious  and 
disinterested  freeholders  of  the  town  of  in  said  county, 
to  estimate  and  assess  the  damage  done  to  the  lands  of  E.  F. 
and  G.  H.  by  laying  out  the  above  described  highway  ;  and 
at  the  same  time  they  were  duly  sworn  by  me  to  make  a 
just  and  impartial  estimate  of  such  damages. 

J.  P.  justice  of  the  peace. 
Certificate  of  ihe  Freeholders. 

The  subscribers,  freeholders  of  the  town  of  in  the 
county  of  hereby  certify,  that  having  been  appointed, 
and  duly  sworn  to  estimate  the  damages  sustained  by  the 
abovenarned  E.  F.  and  G.  H.  by  the  laying  out  of  the  above 
described  highway,  they  being  owners  of  land  over  wnirh. 
the  same  is  laid,  and  having  viewed  said  highway  and  said 
land,  and  they  in  pursuance  of  notice,  being  present,  did 
estimate  and  assess  the  damage  of  the  said  E.  F.  at 
dollars,  and  the  damage  of  the  said  G.  IT.  at  dollars, 

arising  from  the  laying  out  of  said  highway  as  aforesaid. 

[Signed.] 
Receipt  of  Damages. 

The  subscribers,  owners  of  land  over  which  the  fore- 
going highway  is  1-ud  out,  hereby  acknowledge  to  have 
received  of  the  Select-mpn  of  said  town  of  thelJama- 
ges  agreed  upon,  or  assessed  to  them  respectively,  as  afore- 
said. 


299 

Certificate  of  Town  Clerk. 

I  hereby  certify,  that  at  a  legal  town  meeting,  holden  ou 
the  day  of  said  town  of  accepted  and  approved 
of  the  laying  out  of  the  foregoing  highway,  by  the  Select- 
men of  said  town  ;  and  on  the  day  of  the  afore- 
said survey  and  description  of  said  highway,  under  the 
hands  of  said  Select-men,  was  by  me  recorded  in  the  re- 
.cords  of  lands  of  said  town. 

The  Select-men  are  authorized  to  remove  encroachments 
made  on  public  highways.  If  any  person  include  any  part 
of  a  highway  in  his  field  or  inclosure,  or  erect  his  fence 
on  the  same,  whereby  the  highway  is  made  narrower,  the 
Select-men,  or  a  committee  of  the  town  appointed  for  that 
purpose,  may  notify  and  warn  such  person  to  remove  his 
fence  within  one  month  ;  and  if  he  does  not  remove  the 
same  within  that  time,  the  Select-men,  or  such  committee, 
are  authorized  to  remove  the  same,  and  have  a  right  by  any 
proper  action  to  recover  the  expense  thereof,  of  the  per- 
son making  such  encroachment.  And  if  after  such  remov- 
al, such  person  shall  again  erect  his  fence,  so  as  to  inclose 
the  same,  or  a  less  part  of  the  highway,  he  incurs  a  pen- 
alty of  seven  dollars  for  every  such  offence,  as  often  as  re- 
peated, one  half  to  the  Select-men  who  gave  the  warning 
and  removed  the  fence,  and  who  may  prosecute  such  offend- 
er, and  the  other  half  to  the  treasury  of  the  county  where- 
in the  offence  is  committed  (e).  But  where  the  Select- 
men brought  an  action  on  this  statute  to  recover  the  ex- 
penses of  giving  notice  and  removing  encroachments  upon 
a  highway,  it  ;vas  decided  that  they  did  not  act  as  the  agents 
of  the  town  and  that  the  town  was  not  interested  in  the 
event  of  the  suit  (/.) 

2.  The  Select- men  are  authorized  to  appoint  overseers. 
They  are  required  from  time  to  time  to  inspect  the  man- 
agement and  conduct  of  all  persons  residing  within  their 
respective  towns,  and  if  they  find  any  person  by  idleness, 
gaming,  intemperance,  debauchery,  mismanagement,  or  bad 
husbandry,  who  is  likely  to  spend  and  waste  his  estate,  and 
b»come  chargeable  to  the  town,  they  may  Appoint  some 
proper  person  to  be  his  overseer  to  advise,  direct  and  or- 

(t>  St.  362  (/)  2  Conn.  Rep.  292. 


der  him  in  his  business.  Such  appointment  must  be  in 
writing,  subscribed  by  the  Select-men,  specifying  the  cause 
thereof,  and  must  be  for  a  definite  period  of  time  not  ex- 
ceeding three  years.  A  copy  of  such  appointment  must 
be  logded  with  the  town  clerk  of  the  town  ;  and  a  like 
copy  or  other  notice  of  such  appointment  must  be  set  up 
on  the  sign-post  in  the  town  ;  and  if  there  are  several  so- 
cieties it  should  be  on  Ihe  sign-post  where  such  person 
resides,  although  perhaps  this  is  not  indispensable  to  the 
validity  of  the  appointment.  Such  Select-men,  or  their 
successors,  may  remove  such  overseer  for  neglect  of  duty 
or  mismanagement  in  his  trust,  and  appoint  another  in  his 
place  (g).  Where  no  time  is  limited  in  the  appointment  of 
an  overseer,  the  appointment  is  void  (A).  If  the  appoint- 
ment is  for  more  than  three  years,  it  is  also  void.  In  ca.se 
of  a  void  appointment  of  an  overseer  to  a  person  within 
the  jurisdiction  of  the  Select-men,  owing  to  its  not  being 
in  conformity  to  the  statute,  the  Select-men  are  not  liable, 
although  such  appointment  was  made  without  probable 
cause  and  from  malice,  except  special  damages  arise  from 
such  appointment,  which  must  be  alleged  and  proved,  as 
the  appointment  imposes  no  restraint,  and  the  law  will  not 
imply  any  damage  (i).  The  Select-men  cannot  appoint  an 
overseer  except  to  persons  residing  in  the  town,  and  if  they 
appoint  one  over  a  person  who  is  an  inhabitant  of  the  town, 
or  has  a  settlement  there,  but  does  not  reside  within  the 
town,  the  appointment  is  void  and  the  Select-men  are  lia- 
ble to  the  party,  where  actual  damage  arises  from  such  ap- 
pointment, the  same  being  specifically  alleged  and  proved. 
But  where  the  Select-men  make  an  appointment  of  an 
overseer  to  a  person  within  their  jurisdiction,  without 
probable  cause,  the  appointment  is  valid  ;  but  the  Select- 
men are  liable  to  the  party  without  alleging  or  proving 
special  damage,  as  the  law  implies  damage,  the  person  be- 
ing deprived  of  the  power  of  making  contracts  and  trans- 
acting business.  But  the  law  will  not  presume  that  the  Se- 
lect-men have  acted  wrongfully,  or  that  they  have  appoin- 
ted an  overseer  to  a  person  who  was  not  a  proper  subject 
of  such  appointment,  and  the  proof  lies  on  the  plaintiff, 
where  he  claims  that  the  Select-men  have  made  an  appoint- 

(§•)  Stat.  276.        (h]  i  Con.  Rep.  79.      (i)  id.  313. 


301 

vuent  from  malice,  and  without  probable  cause,  and  the 
failure  of  the  defendants  to  prove  any  facts  to  shew  that 
they  acted  fairly,  or  that  the  appointment  was  made  accord- 
ing to  the  Statute,  will  not  warrant  an  inference  of  malice 
against  them  (i). 

If  the  person  over  whom  the  Select-men  have  appointed 
an  overseer  reforms,  they  may  revoke  the  appointment  ; 
but  if  such  measures  do  not  produce  a  reformation,  or  if 
such  person  refuses  to  submit  to  the  authority  of  his  over- 
seer, the  Select-men  may  apply  to  two  or  more  justices  of 
the  peace  of  the  town,  who  may  issue  a  warrant,  and  cause 
such  person  to  be  brought  before  them,  or  may  notify  him 
to  appear  at  a  proper  time  and  place  ;  or  if  he  absconds, 
a  notice  may  be  left  at  his  usual  place  of  abode.  And 
thereupon  such  justices  may  proceed  to  make  inquiry,  and 
if  they  find  that  such  person  is  by  intemperance,  or  any  of 
the  kinds  of  misconduct  which  authorize  the  appointment 
of  an  overseer,  wasting  his  property,  and  likely  to  be  re- 
duced to  want,  or  that  he  refuses  to  submit  to  the  authority 
of  his  overseer,  they  may  direct  and  authorize  the  over- 
seer, or  appoint  any  other  person  to  take  such  person  an< 
his  estate  under  his  care. 

The  duties  and  authority  of  an  overseer,  thus  appointed, 
are  substantially  the  same  as  those  of  a  conservator  ap- 
pointed by  the  county  court  ;  he  has  the  sole  charge  and 
control  of  such  person  and  his  estate.  He  must  make  an 
inventory  of  the  estate  of  such  person,  and  lodge  a  copy 
of  the  same  with  the  town  clerk,  and  must  annually,  and 
oftener  if  required,  render  his  account  to  the  Select-men, 
of  the  discharge  of  his  trust.  He  may  be  removed  by 
the  Select-men,  with  the  advice  and  consent  of  two  justices 
of  the  town,  for  misconduct  in  his  office,  and  another  per- 
son appointed  in  his  place  ;  and  in  case  of  death  or  resig- 
nation, another  person  may  in  like  manner  be  appointed. 
When  a  vacancy  occurs  by  death  or  resignation,  the  disa- 
bility of  the  person  continues  for  nine  days,  to  give  the 
Select-men  an  opportunity  to  supply  such  vacancy,  by  the 
appointment  of  another  overseer.  Such  overseer  may 
apply  to  the  county  court  and  obtain  an  order  to  sell  the 
real  estate  of  such  person,  if  that  is  necessary,  to  pay  his 

(i]  1  Conn.  Rep.  313. 
26 


debts.  Whenever  such  person  reforms,  the  justices  of  the 
peace  making  such  appointment,  may  revoke  the  same,  and 
order  his  estate  to  be  restored  to  him.  If  any  person  is 
aggrieved  by  the  doings  of  the  Select-men,  or  justices  of 
the  peace,  he  may  appeal  to  the  county  court,  which  is 
authorized  to  grant  relief  (fe). 

Form  of  appointment  of  Overseer. 

The  subscribers,  Select-men  of  the  town  of  having 
inspected  and  examined  the  conduct  and  management  of  his 
business  of  A.  B.  an  inhabitant  of  said  town,  and  residing 
therein,  and  finding,  that  by  intemperance  and  gaming, 
(or  idleness,  mismanagement  and  bad  husbandry,)  he  is 
spending  his  estate,  and  likely  to  be  reduced  to  want,  and 
himself  and  family  become  chargeable  to  said  town,  we  do 
hereby,  this  day  of  ,  constitute  and  appoint  C.  D. 

of  said  town,   overseer  to  said  A.  B.  to  advise,   direct  and 
order  him  in  the  management  ot  his  business. 

[Signed  by  a  majority  of  the  Select-men.] 

Citation  by  two  Justices  of  the  Peace. 
To  any  constable  of  the  town  of         &c. 
Whereas  C.,  D.  and  G.,  Select-men  of  said  town   have 
applied  to  us,  representing  that  A.  B.   a  resident  of  said 
town  of         ,  being  in  practices  of  intemperance  and  idle- 
ness, whereby  he  was  wasting  his  estate,  and  liable  to  be- 
come chargeable  to  said  town  of  ,  on  the         day  of 
they  appointed  L.  M.  overseer  to  the  said   A.  B.  to 
advise  and  direct  him  in  his  business,  and  the  said  L.  M. 
thereupon  took  upon  him  said  trust  ;  and  further   repre- 
senting that  the  measure  and  proceedings  aforesaid  have 
not  produced  a  reformation  in  the  said  A.  B.  [or  ;  but  that 
the  said  A.  B.  hath  refused  and  still  refuses  to  submit  to 
the  authority  of  his  said  overseer].     Wherefore  you  are 
hereby  commanded  to  summon  the  said  A.  B.  to  appear 
before  us  at         ,  on  the         day  of  ,  then  and  there 
to  shew  cause,  if  any  he  has,  why  we  shall  not  authorize 
and   direct  said  overseer,  or  appoint  some  other  suitable 
person,  to  take  his  family  and  estate  under  his  care,  agree- 
ably to  the  statute  in  such  case  provided.     Hereof  &c. 
[Signed  by  the  two  Justices.] 

ffc)  St.  277. 


303 

Appointment  by  the  Justices. 

Be  it  remembered  that  on  this  day  of  A.  D. 
A.  B.  a  resident  of  the  town  of  ,  appeared  before  us  m 
pursuance  of  a  citation  issued  by  us  on  the  application  of 
C,  D  and  G,  Select-men  of  said  town  of  representing 
that  the  said  A.  B.  being  in  habits  of  gaming  and  intemper- 
ance, whereby  he  was  wasting  his  estate,  they  on  the 
day  of  appointed  L.  M.  overseer  to  the  said  A.  B.  to 
advise  and  direct  him  in  his  business,  and  that  said  L.  M. 
thereupon  took  upon  him  the  discharge  of  said  trust  ;  and 
further  representing  that  said  measures  did  not  produce  a 
reformation  in  the  said  A.  B.  (or  that  the  said  A.  B.  refus- 
ed to  submit  to  the  authority  of  his  said  overseer)  ;  and 
having  inquired  into  the  facts,  we  do  find  that  the  said  rep- 
resentations of  said  Select-men  are  true,  and  that  the  ap- 
pointment of  said  overseer  has  not  produced  a  reformation 
in  the  said  A.  B.  (or  that  he  refuses  to  submit  to  the  au- 
thority of  said  overseer)  and  that  he  is  likely  to  waste  his 
estate  by  gaming  and  intemperance,  and  to  become  charge- 
able to  said  town  :  Whereupon,  in  virtue  of  the  statute  in 
such  cases  provided,  we  do  hereby  authorize  and  direct 
the  said  L.  M.  to  take  the  family  of  the  said  A.  B.  and  his 
estate  under  his  care  and  charge,  agreeably  to  the  provis- 
ions of  the  statute,  in  such  case  made  and  provided. 

3.  It  is  provided  by  statute,  that  parents  and  those  who 
have  the  charge  of  children,  shall  bring  them  up  to  some 
honest  calling  and  employment ;  and  that  they  shall  cause 
them  to  be  instructed  and  taught  to  read,  write,  and  cypher, 
as  far  as  the  first  four  rules  of  arithmetic  ;  and  it  is  made 
the  duty  of  the  Select-men  to  inspect  the  conduct  of  heads 
of  familes,  and  if  they  find  they  neglect  the  education  of 
their  children,  to  admonish  them  to  attend  to  their  duty, 
and  if  they  continue  to  be  negligent,  whereby  their  chil- 
dren grow  rude,  stubborn  and  unruly,  the  Select-men,  with 
the  advice  of  a  justice  of  the  peace  of  the  town,  may  take 
such  children  from  their  parents,  or  those  who  have  the 
charge  of  them,  and  bind  them  out  to  some  proper  mas- 
ter, males  until  twenty-one,  and  females  until  eighteen 
years  of  age,  that  they  may  be  properly  educated  and 
brought  up  in  some  lawful  calling  and  employment  (/). 

(I)  St.  107. 


The  right  of  the  Select-men  to  interfere,  does  not  depend 
upon  the  parents,  or  those  who  have  the  charge  of  children, 
being  chargeable,  or  likely  to  become  chargeable  to  the 
town,  but  wholly  on  the  fact  of  their  neglecting  the  educa- 
tion and  employment  of  their  children,  and  suffering  them 
to  grow  up  in  idleness  and  ignorance.  If  the  Select-men 
interfere  without  probable  cause  and  from  malice,  they 
would  be  liable,  the  same  as  in  case  of  the  appointment  of 
overseers  ;  or  if  they  were  to  bind  out  children  without 
previously  admonishing  their  parents,  or  those  who  have 
the  care  of  them  ;  they  must  R!SO  provide  in  binding  them 
out,  that  they  be  properly  educated  and  brought  up  to  some 
proper  calling  and  employment,  as  it  is  on  the  ground  of  a 
neglect  of  this,  that  the  Select-men  are  justified  in  inter- 
pc-ing  th-ir  authority. 

It  is  further  provided,  that  when  those  persons  who  have 
iief  or  supplies  from  any  town,  suffer  their  children 
;  ppd  their  time,  and  live  in  idleness,  and  neglect  to 
;hem  up  to  some  honest  calling  ;  and  when  the  head 
•  >f  any  family  does  not  provide  for  his  children,  whereby 
:  'v  are  exposed  to  want,  and  where  there  are  any  poor  chil- 
iren  in  any  town  that  are  exposed  to  want,  and  live  in  idle- 
ness, having  no  person  to  take  care  of  them,  the  Select- 
men of  the  town  are  authorized,  and  it  is  their  duty,  with 
'!;<•  L.rsont  of  a  justice  of  the  peace  of  the  town,  to  bind  out 
such  poor  children  to  be  apprentices  to  some  proper  mas- 
ter, to  be  instructed  in  some  suitable  trade,  calling,  or  pro- 
fession, males  until  the  age  of  twenty-one,  and  females  un- 
til the  age  of  eighteen,  or  to  the  time  of  their  marriage 
within  that  age  (n).  The  principle  of  this  statute  is  en- 
tirely different  from  the  other,  here  the  Select-men  inter- 
pose their  authority  and  superintendence  solely  on  the 
ground  of  the  parents  being  in  indigence,  and  of  their  hav- 
ing actually  received  assistance  from  the  town,  or  of  their 
not  providing  competently  for  their  children,  and  their  suf- 
fering them  to  grow  up  in  idleness  without  being  employed 
in  any  honest  business,  whereby  they  may  earn  their  liv- 
ing, and  be  qualified  for  useful  citizens.  The  object  of  the 
statute,  relating  to  children,  is  to  guard  against  the  children 
of  the  poor  .and  th  ose  who  are  insensible  of  the  advantages 

(d)  St.  318. 


of  education,  being  suffered  to  grow  up  in  ignorance  ;  and  the 
object  of  the  act  relating  to  masters  and  servants  is  to  prevent 
the  children  of  indigent  and  negligent  persons  being  brought 
up  in  idleness,  without  acquiring  either  habits  of  industry, 
or  a  knowledge  of  any  imployment  whereby  they  may  pro- 
cure a  livelihood,  and  become  useful  members  of  society. 
From  the  importance  of  the  education  and  employment  of 
youth,  they  are  very  properly  considered  by  our  laws,  as 
objects  of  public  as  well  as  private  concern,  and  as  proper 
subjects  to  which  the  aid  and  vigilance  of  legislation  should 
be  extended,  where  from  indigence  or  ignorance  those 
whose  duty  it  is,  neglect  these  important  objects,  upon 
which  the  well  being  of  individuals,  and  the  morals  and 
prosperity  of  communities, essentially  depend. 

From  the  terms  of  the  statute  it  would  seem  that  the 
Select-men  would  not  be  authorized  to  bind  out  children, 
except  as  apprentices  to  some  trade  or  profession  ;  but 
practically  at  least,  a  more  extended  construction  has  been 
given  to  this  provision,  and  the  Select-men  bind  out  chil- 
dren to  any  useful  employment  or  business.  They  could 
not  be  justified  in  binding  them  out  merely  to  be  servants, 
where  they  are  not  te  be  employed  in  any  useful  business 
or  occupation.  If  the  Select-men  bind  out  the  children  of 
those  who  have  not  received  assistance  from  the  town,  and 
do  not  suffer  their  children  to  live  in  idleness,  and  neglect 
to  employ  them  in  some  honest  calling,  or  children  which 
are  not  exposed  to  want,  they  will  be  liaMp  to  the  p  >.rty 
injured,  if  they  have  acted  from  malice  and  without  proba- 
ble cause.  Neither  can  the  Select-men  bind  out  children, 
unless  they  belong  to  the  town,  and  are  within  their  juris- 
diction ;  but  where  they  can  lawfully  interfere,  a  binding 
out  by  them,  is  valid  and  effectual,  although  against  the 
consent  of  the  child  and  its  parents. 

Form  of  Indenture  where  the  head  of  a    family  neglects  the 

Education  of  his  or  her  children. 

This  indenture,  made  this  day  of  between  A,  B 
and  C,  Select-men  of  the  town  of  ,  with  the  advice  and 
assent  of  J.  P.  one  of  the  justices  of  the  peace  of  said 
town  on  the  one  part,  and  L'  M.  of  ,  on  the  other  part, 
witnesseth,  that,  whereas  S.  R.,  the  mother  of  a  minor 
;hild  named  R.  R.  both  inhabitants  and  residents  of  said 
26* 


306 

town  of  ,  the  said  S.  R.  the  mother  of  said  child,  and 
having  the  charge  of  the  same,  he  having  no  father  living^ 
has  neglected  the  care  and  education  of  said  child,  and  al- 
though often  admonished  by  said  Select-men,  she  continued 
to  neglect  the  education  of  said  child,  whereby  he  grew 
rude,  stubborn  and  unruly,  said  Select-men  have  deemed 
it  proper  to  remove  said  child  from  the  care  of  S.  R.  his 
said  mother,  and  to  bind  out  the  same,  and  with  the  advice 
and  consent  of  J.  P.  justice  of  the  peace  in  said  town  of 
for  the  county  of  ,  do  hereby  bind  the  said  R.  R. 
unto  the  said  L.  M.  to  live  with  him,  and  by  him  to  be  ed- 
ucated, and  brought  up  and  instructed  in  some  honest  and 
lawful  employment,  from  the  date  hereof  until  the  said  R. 
R.  arrives  at  the  age  of  years,  which,  as  said  Select- 
men are  informed,  will  happen  on  the  day  of  A.  D. 
And  said  Select-men,  by  virtue  of  the  statute  in  such 
case  provided,  do  hereby  give  to  the  said  L.  M.  all  ne- 
cessary authority  over  the  said  R.  R.  and  the  full  right  of 
his  time  and  services  during  said  period  And  in  consid- 
eration thereof,  the  said  L.  M.  on  his  part,  does  hereby 
covenant  and  agree  to,  and  with  said  town,  to  take  the  care 
and  charge  of  said  R.  R.  to  cause  him  to  be  taught  and  in- 
structed to  read,  write,  and  cypher  as  far  as  the  four  first 
pules  of  arithmetic,  and  to  cause  him  to  attend  school 
months  in  each  year  of  said  term,  to  bring  him  up  and  in- 
struct him  in  the  employment  and  business  of  ,  and  to 
provide  for  him  suitable  food  and  apparrel,  washing  and 
lodging,  medical  assistance  in  case  of  sickness,  and  all 
necessaries  proper  and  suitable  in  sickness,  or  in  health, 
for  said  R.  R.  during  said  term  ;  and  at  the  expiration 
thereof,  give  him  clothing. 

In  witness  whereof  we  have  hereunto  interchangeably 
set  our  hands  and  seals.  A,  } 

B,  }  Select-men. 

C.  ) 
L.  M. 

County  ss.  H         day  of        A.  D. 

I  certify  that  I  advised  and  do  hereby  advise  and  assent 
to  the  binding;  out  of  the  above  named  R.  R.  to  the  said 
L.  M.  agreeably  to  the  foregoing  inderture. 

J.  P.  justice  of  the  peace 


30? 

In  case  of  binding  out  of  a  female  it  must  be  until  she 
arrives  to  a  certain  nge  (not  exceeding  eighteen)  or  until 
her  marriage  within  the  age  of  eighteen. 

Indenture  by  Select-men  where  a  child  is  in  want,  or  his  pa- 
rents receive  relief  from  (lie  town  fyc. 
This  Indenture,  m;ide  this         day  of  .  between  A, 

B  and  C,  Selectmen  of  the  town  of  ,  with  the  assent 
of  J.  P.  justice  of  the  peace  for  the  county  of  ,  re- 

siding within  said  town,  of  the  one  part,  and  L.  M.  of 
of  the  other  part,  witnesseth,  that  J.  S.  an  inhabitant  of 
said  town,  and  having  received  supplies  from  the  same, 
and  permitting  R.  S.  a  minor  child  of  his  to  live  in  idle- 
ness, and  neglecting  to  bring  him  up  to  any  honest  employ- 
ment, said  Select-men  have  deemed  it  their  duty,  and  do 
hereby  bind  out  the  said  R.  S.  [or,  that  J.  S.  an  inhabitant 
of  said  town,  not  providing  competent!}  for  his  family, 
whereby  they  are  exposed  to  want,  said  Select-men  have 
deemed  it  proper,  and  do  hereby,  with  the  consent  of  J.  P. 
justice  of  the  peace  of  the  county  of  ,  and  residing  in 
said  town  of  ,  bind  out  R.  S.]  a  minor  child  of  said  J.  S. 
residing  in  said  town,  unto  said  L.  M.  to  live  with  and 
serve  him  the  said  L.  M.  as  an  apprentice,  from  the  date 
hereof,  until  he  attains  to  the  age  of  twenty-one  years. 
which,  as  said  Select-men  are  informed,  will  be  on  the 
day  of  A.  D.  if  he  lives  to  that  age.  And  the  said 
Select-men  do  by  these  presents,  and  by  virtue  of  the  stat- 
ute in  such  case  provided,  give  to  the  said  L.  M.  all  the 
right  to  the  time  and  services,  and  the  same  power  and  au- 
thority over  the  said  R.  S.  during  said  term,  as  a  master 
lawfully  has  to  and  over  an  apprentice  in  other  cases. 
And  the  said  L.  M.  on  his  part,  in  consideration  of  the 
premises,  does  agree  and  covenant  with  said  town  of 
and  the  said  R.  S.  to  teach  and  instruct  him  the  said  R.  S. 
in  reading,  writing  and  arithmetic,  to  permit  him  to  attend 
school  months  in  each  of  the  four  first  years  of  his 

said  term,  to  provide  for  and  furnish  him  with  suitable  food, 
clothing,  washing  and  lodging,  to  furnish  him  medicine  and 
medical  assistance  in  sickness,  and  all  the  necessaries  pro- 
per and  suitable  for  the  said  R.  S.  in  sickness  and  health, 
and  to  teach  and  instruct,  or  cause  him  to  be  taught  and 
instructed  in  the  trade  and  occupation  of  ,  according 


to  the  most  approved  method  and  practice  ;  and  during 
said  term  to  teach  the  said  R.  S.  said  trade  and  make  him 
skilled  therein,  so  far  as  his  abilities  and  ingenuity  will 
admit  ;  to  oversee  and  guard  his  morals,  and  train  him  to 
habits  of  obedience,  subordination,  industry  and  economy  ; 
and  at  the  expiration  of  said  term  of  apprenticeship,  to 
give  him  clothing. 

In  testimony  whereof,  said  parties  have  &c. 

We  have  examined  the  leading  and  most  important  duties 
of  Select-men  ;  but  there  are  various  other  specific  acts 
and  duties,  which,  by  different  statutes  they  are  required 
to  perform,  either  of  their  own  authority,  or  in  connex- 
ion with  one  or  more  justice  of  the  peace,  or  the  civil  au- 
thority of  the  town,  many  of  which  we  have  briefly  noticed, 
in  treating  of  the  powers  and  duties  of  justices  of  the 
peace  ;  and  others  are  so  clearly  pointed  out  by  statute, 
that  there  would  be  little  use  in  considering  them  ;  be- 
sides, the  prescribed  limits  of  this  work  oblige  us  to  close 
this  part  of  ;t,  which  has  already  been  extended  to  greater 
length  than  was  expected  at  the  time  we  entered  upon  it. 


FORMS,  OF  COMMON  USE  AND  GENERAL  CON 
VENIENCE. 


1 .  A  JVeirntiabJe  Note. 

Sixty  days  from  the  date  I  promise  to  pay  to  A.  B.  or  or- 
der, tifty  dollars,  for  value  received. 

H     ,  January  30th,  1823.  C.  D. 

$50. 

payable  at  Bank. 

Ninety-five  days  from  the  date  I  promise  to  pay  A.  B. 
or  order,  at  the  Phoenix  Bank,  one  hundred  dollars,  for  va- 
lue received.  H  ,  30th  day  of  Jan.  1823. 

$100.  C.  D. 

2,  An  Order. 
Sir — 

Please  to  pay  to  A.  B.  or  order.  dollars,  and  charge 
the  sametOjtne,  it  being  for  value  received.  Dated,  &c. 

To  E.  F".  A.  B. 

3.  Inland  Bill  of  Exchange. 
$100.  Hartford,  30th  January,  1823. 

At         days  after  date,  [or  at  sight,  or  on  demand,  or 
days  after  sight]  pay  to  A.  B.  or  order,  one  hundred  dollar?, 
for  value  received. 

To  E.  F.  merchant  at  New-Haven.  C.  D. 

Endorsement. 
Pay  the  contents  of  the  within  to  L.  M.  or  order. 

A.  B. 
Protest 

Know  all  men,  that  I,  S.  B.  on  this  day  of  1823, 
at  the  usual  place  of  abode  of  Mr.  J.  C.  have  demanded 
payment  of  the  bill  (of  which  the  above  is  a  copy,)  which 
the  said  J.  C.  did  not  pay,  wherefore  I  the  said  S.  B.  do 
hereby  protest  the  said  bill ;  dated  at  H  this  day  of 
1823. 

Foreign  Bill. 
No. —  New- York,  30th  Jan.  1823. 

Exchange  for  £5000  sterling. 
At  two  usances  [or  at      days  after  sight,  or  at       days  af- 


310 

ter  date,]  pay  this  my  first  bill  of  exchange  (second  and  third 
of  the  same  tenor  and  date  not  paid)  to  Mr.        or  order,  [or 
bearer]  five  thousand  pounds  sterling,   value   received  of 
him,  and  place  the  same  to  account,  as  per  advice  from 
To  Mr.         at  London.  James  Oatl-md. 

4.  A  single  Bill  for  the  payment  of  Money. 
Know  all  men  by  these  presents,  that  I,  A.  B.  of  do 

owe  and  am  indebted  unto  J.  A.  of  the  sum  of  twenty - 

five  dollars.  \\  hich  said  sum  1  promise  to  pay  unto  the 
*:iid  J.  A.  hi?  executor?,  administrators  or  assigns,  on  orbe- 
fore  the  day  of  next  ensuing  the  date  hereof.  Wit- 
ness my  hand  and  seal  this  day  of  A.  D.  1823. 

A  penal  bill  for  the  payment  of  Money. 

Know  all  men  by  these  presents,  that  I,  A.  B.  of  do 
owe  unto  J.  I.  of  one  hundred  dollars,  to  be  paid  unto 
ti.  >  said  J.  I.  his  executors,  administrators  or  assigns,  on  or 
brforethe  day  of  next  ensuing  the  date  hereof ;  for 

which  payment  well  and  truly  to  be  m-ide,  1  bind  myself, 
my  heirs,  executors  and  administrators,  to  the  said  J.  I.  his 
executors,  administrators  or  a*=ians,  in  the  penal  sum  of 
two  hundred  dollar?,  firmly  by  these  presents.  In  witness 
whereof  i  have  hereunto  set  my  hand  and  seal5thi= 

Signed,  sealed  and  deliv-  ) 
ered  iu  the  presence  of  $ 

5.   FORM  OF  DL; 
Deed  by  Executor  or  Administrator  of  Land  sold  by  order  of 

the  Court  of  Probate. 

Know  all  men  by  these  presents,  that  I,  A.  B.  of  in 
the  county  of  executor  of  the  last  will  and  testament  of 
C.  D.  late  of  deceased,  (or,  administrator  of  the  estate 
ofC.  D.  late  of  deceased,  intestate,)  by  virtue  of  an  or- 
der of  court  of  probate,  for  the  district  of  me  directing 
to  sell,  at  public  or  private  sale,  so  much  of  the  real  estate 
of  the  said  C.  D.  deceased,  as  shall  be  sufficient  to  raise 
the  sum  of  dollars  and  cents,  (being  the  amount 

of  debts  and  demands  against  the  said  estate,  exceeding  the 
personal  estate,)  with  incidental  charges  ;  and  in  consider- 
ation of  the  sum  of  dollars  and  cents,  received  to  my 
full  satisfaction  of  E.  F.  of  in  said  county,  do  grant,  bar- 


311 

gam,  sell,  and  confirm,  unto  the  said  E.  F.  all  the  right,  ti 
tie,  interest,  claim,  and  demand,  which  the  said  C.  D.  had 
at  the  time  of  his  decease,  in  and  to  [here  describe  the  es- 
tate sold,  as  well  buildings,  as  land].  To  have  and  to  hold 
the  snid  granted  and  bargained  preini-es,  with  the  appur- 
tenances thereof,  unto  him  the  said  E.  F.  his  heirs  and  as- 
signs, to  his  and  their  own  proper  use  and  benefit,  forever. 
And  I,  the  said  A.  B.  as  executor,  (or  administrator,)  afore- 
said, do  hereby  covenant  with  him  the  said  E.  F.  his  heirs 
and  assigns,  that  I  have  full  power  and  authority,  as  execu- 
tor, (or  administrator,)  aforesaid,  to  grant  and  convey  the 
described  premises,  in  manner  and  form  aforesaid,  rind 
for  myself,  my  heirs,  executors,  and  administrrtors,  do  fur- 
ther covenant  to  warrant  and  defend  the  same  to  him  the 
said  E.  F.  his  heirs  and  assigns,  against  the  claims  of  any 
person  or  persons  whomsoever,  claiming  by,  from,  or  un- 
der me,  as  executor,  (or  administrator)  aforesaid.  In  wit- 
ness whereof,  1  have  hereunto  set  my  hand  and  seal,  this 
day  of  A.  D. 

A.  B.  Administrator  of  the  estate 

of  C.  D.  deceased. 
Signed,  sealed,  and  deliv- 
ered, in  presence  of 
H       county,  ss.  H          ,      day  of        A.  D. 

Personally  appeared  A.  B.  signer  and  sealer  of  the  abore 
instrument,  and  acknowledged  the  same  to  be  his  free  act 
and  deed  before  me.  J.  P.  Justice  of  the  Peace. 

Deed  by  guardian  of  minor's  land,  sold  by  order  of  the  Court 

of  Probate. 

Know  all  men  by  these  presents,  that  I,  A.  B.  of  in 

the  county  of        guardian  to  C.  D.  a  minor,  under  the  age 
of  twenty-one  years,  by  virtue  of  license  and  authority  to 
me  granted  by  the  court  of  probate,  for  the  district  of 
(I  having  given  bond  with  surety  to  him  as  the  law  directs,) 
to  sell  the  real  estate  of  said  E.  F.  situated  in  and  con- 

sisting of  [here  describe  the  estate  sold,]  and  for  the  con- 
sideration of  dollars  received  to  my  full  satisfaction  of 
L.  B.  of  do  grant,  bargain,  sell,  and  confirm  unto  the 
said  L.  B.  the  above  described  estate  of  the  said  C.  D.  a 
minor,  as  aforesaid.  To  have  and  to  hold  the  said  granted 


312 

and  bargained  premises,  with  the  appurtenances  thereof,  to 
the  s-ud  L.  B.  his  heirs  and  assigns,  and  to  his  and  their  on- 
ly use  and  behoof,  forever.  And  I  the  said  A.  B.  as  guar- 
dian aforesaid,  do  covenant  with  the  said  L.  B.  his  heirs  and 
assigns,  that  I  have  full  power  and  authority  in  said  capaci- 
ty, to  grant  and  convey  the  described  premises,  in  manner 
and  form  aforesaid.  And  1  for  myself,  my  heirs,  executors, 
and  administrators,  do  further  covenant  to  warrant  the  same 
to  him  the  said  L.  B.  his  heirs  and  assigns,  against  the 
claims  of  any  person  or  persons  whatsoever,  claiming-  by, 
from,  or  under  me,  as  guardian  aforesaid.  In  witness 
whereof,  1  have  hereunto  set  my  hand  and  seal,  this 
day  of  A.  D.  .  A.  B.,  Guardian  to  C.  D. 

a  minor. 

Signed,  sealed  and  delivered  > 
in  presence  of  $ 

H       county,  ss.  H         ,     day  of    A.  D. 

Personally  appeared  A.  B.  signer  and  sealer  ofthe  above 
instrument,  and  acknowledged  the  same  to  be  his  free  act 
and  deed,  before  me.  J.  P.  Justice  ofthe  Peace. 


Mortgage  Deed. 

Know  all  men  by  these  presents,  that  I,  A.  B.  of  in 
the  county  of  for  the  consideration  of  received  to 
my  full  satisfaction  of  C.  D.  of  do  give,  grant,  bargain, 

sell,  and  confirm,  unto  the  said  C.  D.  [here  describe  the  es- 
tate mortgaged,]  to  have  and  to  hold  the  premises  aforesaid, 
'with  all  their  appurtenances,  unto  him  the  said  C.  D.  his 
heirs  and  assigns,  to  his,  and  their  own  proper  use  and  ben- 
efit, for  ever.  And  I,  the  said  A.  B.  do,  for  myself,  my 
heirs,  executors,  and  administrators,  covenant  with  the  said 
C.  D.  his  heirs  and  assigns,  that  until  the  ensealing  of  these 
presents,  I  am  well  seized  of  the  premises  as  a  good  inde- 
feasable  estate,  in  fee  simple,  and  have  good  right  to  bargain 
and  sell  the  same,  in  manner  and  form  as  is  above  written  ; 
and  that  the  same  is  free  of  all  encumbrances  whatsoever, 
and  do  hereby  bind  myself  and  my  heirs,  for  ever,  tp  war- 
rant and  defend  the  same  premises  to  him  the  said  C.  D., 
his  heirs  and  assigns,  against  all  lawful  claims  and  demands 
whatsoever  ;  provided  always,  and  upon  condition,  (hat  if 
the  said  A.  B.  his  heirs  or  assigns,  do  well  and  truly  pay, 


313 

or  cause  to  be  paid  to  the  saidC.  D.  his  executors,  admin- 
istrators, or  assigns,  the  amount  which  shall  be  due  on  a 
certain  note  ofhand,  for  the  sum  of  bearing  date  on  the 
day  of  A.  D.  signed  by  the  said  A.  B.  and  paya- 
ble on  demand  [or  any  other  time,]  with  interest,  to  the 
said  C.  D.  according  to  the  tenor  thereof,  then  the  above 
deed  is  to  be  null  and  void,  otherwise  to  be  and  remain  in 
full  force  and  virtue,  in  the  law.  In  witness  whereof,  I 
have  hereunto  set  my  hand  and  seal,  this  day  of  A.  D. 
Signed,  sealed  and  deliver-  ?  A.  B.  (SEAL.) 

ered  in  presence  of         $ 

H       county,  ss.  H         ,     day  of      A.  D. 

Personally  appeared  A.  B.  signer  and  sealer  of  the  above 
instrument,  and  acknowledged  the  same  to  be  his  free  act 
and  deed  before  me.  J.  P.  Justice  of  the  Peace. 

A  mortgage  deed  may  be  executed  in  common  form,  and 
an  endorsement  entered  on  the  back,  subscribed  by  the 
grantee.  A  deed  of  land  belonging  to  a  married  woman, 
must  be  executed  in  the  names,  and  signed  and  acknowledg- 
ed by  both  of  them,  the  same  as  any  other  joint  deed  by 
two  persons. 

A  Deed  executed  by  Attorney. 

Know  all  men,  that  I,  A.  B.  of  by  J.  S.  of  my  at- 
torney, he  being  fully  authorized  to  act  in  this  behalf,  by 
a  power  dated  the  day  of  and  a  copy  of  which  is  here- 
unto annexed,  for  the  consideration,  &c.  [The  rest  of  the 
deed  is  in  common-foren,  except  the  signing  and  acknowledg- 
ment. The  attorne^toust  sign  the  name  of  his  principal, 
as  follows :]  A.  B.  (SEAL.) 

By  his  attorney,  J.  S, 

Acknowledgment. 
H       county,  ss.  H         ,     day  of        A.  D. 

Personally  appeared,  by  his  said  attorney,  J.  S.,  A.  B. 
signer  and  sealer  of  the  foregoing  instrument,  and  acknow- 
ledged the  same  to  be  his  free  act  and  deed  before  me. 
J.  P.  Justice  of  the  Peace. 

Or  the  deed  may  be  in  cornjj^^rm,  efjpfejjt  the  signing 
and  acknowledgment ;  but  ^H    ^fc^exec\ite(f  in  tbe  name 


314 

of  the  principal,  and  not  in  that  of  the  attorney.  It  is 
safest  to  annex  a  copy  of  the  power  of  attorney,  and  have 
it  recorded  with  the  deed,  but  this  is  not  necessary  to  the 
validity  of  the  title. 

Power  of  Attorney  to  sell  Land. 

Know  all  men  by  these  presents,  that  1,  C.  D.  of  have 
made,  constituted  and  appointed,  and  by  these  presents  do 
make,  constitute  and  appoint  A.  B.  of  my  lawful  and 

proper  attorney,  and  do  hereby  fully  authorize  and  empow- 
er the  said  A.  B.  in  my  name  and  behalf,  to  bargain,  grant, 
sell  and  convey  a  certain  piece  or  parcel  of  land,  of  whirh  I 
am  well  seized  and  possessed  in  fee,  situated  in  and 

bounded  and  described  as  follows,  viz.  [here  bound  the  land] 
— [or,  to  bargain,  grant,  sell  and  convey  all  the  lands  1  own 
and  possess,  lying  and  being  in  the  county  of  whether 
in  severally  or  as  joint  tenant,  or  tenant  in  common  with 
others  ;]  and  in  my  name  and  behalf,  to  execute  and  deliv- 
er a  proper  deed  or  deeds,  with  the  usual  covenants  of 
warranty  and  seisin  ;  and  all  and  singular  the  acts  and  do- 
ings of  the  said  A.  B.  authorized  herein,  are  hereby  ratifi- 
ed and  confirmed,  and  the  same  are  to  be  as  binding  and  ef- 
fectual in  law  as  if  done  by  me  in  my  own  proper  person, 
the  said  A.  B.  being  accountable  to  me  for  his  doings,  au- 
thorized in  the  premises.  In  witness  whereof,  &c. 
Signed,  sealed  and  deliv- >  C.  D.  (Seal.) 

ered,  in  presence  of     $ 
E.  F. 
G.  H. 

The  power  of  attorney  must  be  attested  by  two  witnesses 
and  acknowledged. 
H       county,  ss.  H         ,     day  of        A.  D. 

Personally  appeared  C.  D.  signer  and  sealer  of  the  with- 
in power  of  attorney,  and  acknowledged  the  same  to  be  his 
free  act  and  deed  for  the  uses  and  purposes  therein  express- 
ed before  me. 

J.  P.  Justice  of  the  Peace. 

6.  Form  of  Lease  of  Land  for  one  year. 
This  indenture,  made  this       day  of        by  and  between 
A.  B.  of        on  one  paoMM^.  D.  of      on  the  other  part, 
vritnesseth,  that  the  a^^HUVfor  the  consideration  hereaf- 


315 

ter  mentioned,  hath  demised,  granted,  and  to  farm  let,  and 
doth  hereby  demise,  grant,  and  to  farm  let,  unto  the  said  C. 
D.  his  heirs,  executors,  administrators  and  assigns,  [here 
des.-ribe  the  premises,]  with  all  the  privileges  and  appur- 
tenances thereunto  belonging.  To  have  and  to  hold  the 
said  demised  premises  with  their  appurtenances  for  and  du- 
ring the  term  of  one  year  from  the  day  of  fully  to  be 
complete  and  ended.  And  the  said  C.  D.  for  himself,  his 
heirs,  executors  and  administrators,  doth  covenant  and  agree 
to  pay,  Also,  &c.  [here  insert  the  particular  agreement 
on  the  part  of  the  lessee]  And  the  parties  aforesaid  for 
themselves  respectively,  each  with  the  other,  and  their  re- 
spective heirs,  executors  and  administrators,  do  further 
covenant  and  agree  as  follows,  viz.  that  the  said  A.  !'• 
shall  quietly  permit,  &c.  And  the  said  C  D.  shall  at  the 
end  of  said  term  relinquish,  &c.  [as  their  agreement  ma\ 
be.]  In  witness,  &c. 

Lease  of  a  House  for  more  than  one  year. 
Know  all  men  by  these  presents,  that  I,  A.  B.  of  H.  in 
H.  county,  for  and  in  consideration  of  the  sum  of  one  hun- 
dred dollars,  received  to  my  full  satisfaction  of  C.  D.  ofsaid 
H.  this          day  of  A.  D.    1823,   have  demised,   and 

to  farm  let,  and  do  by  these  presents  demise,  and  to 
rarm  let,  unto  the  said  C.  D.  his  heirs,  executors,  adminis- 
trators and  assigns,  one  certain  piece  of  land,  lying  and  be- 
ing situated  in  said  H.  bounded  northerly  on  a  highway, 
easterly,  southerly  and  westerly  on  lands  of  E.  F.  with  a 
dwelling-house  thereon,  standing  for  the  term  of  two  years 
from  this  date,  to  have  and  to  hold  to  him  the  said  C.  D.  his 
heirs,  executors,  administrators  and  assigns,  for  said  term, 
excepting  the  front  chamber  in  said  house — for  him  the 
said  C.  D.  to  use  and  occupy,  as  to  him  shall  seem  meet  and 
proper  ;  and  the  said  A.  B.  doth  further  covenant  with  the 
said  C.  D.  that  he  hath  good  right  to  let  and  demise  the 
said  letten  and  demised  premises  in  manner  aforesaid,  and 
that  he  the  said  A.  B.  during  said  time  will  suffer  the  said 
C.  D.  quietly  to  have  and  to  hold,  use  and  occupy  and  enjoy 
said  demised  premises,  and  that  said  C.  shall  have,  hold, 
use,  occupy,  possess  and  enjoy  the  same,  free  and  clear  of 
all  encumbrances,  claims,  rights  and  titles  whatsoever,  in 


318 

witness  whereof,  I,  the  said  A.  B  have  hereunto  set  my 
hand  and  seal,  this  d;ry  of  1823.  A.  B. 

Signed,  sealed,  and  deliv-  £ 
ered  in  presence  of       \ 

E.  F. 

G.  H. 
H       county,  ss.  II       30th  day  of  January,  A.  D.  1823. 

Personally  appeared  A.  B.  signer  and  sealer  of  the  fore- 
going instrument,  and  acknowledged  the  same  to  be  his  free 
act  and  deed  before  rne.  J.  P.  Justice  of  the  Peace. 

7.  Indenture  of  Apprenticeship. 

This  indenture,  made  this         day  of         A.  D.  be- 

tween A.  B.   of  father  of  C.    B.,   a   minor,    under 

the  age  of  twenty-one  years,  of  the  one  part,  and  E.  F.  of 

of  the  other  part,  witnesseth,  that  the  said  A.  B.  hath 
placed  and  bound  his  said  son  C.  B.  an  apprentice  to  the 
said  E.  F.  to  be  instructed  in  the  art,  mystery,  trade,  and 
occupation  of  which  the  said  E.  F.  now  uses,  and  to 

live  with,  and  serve  him  as  an  apprentice,  from  the  date 
hereof,  until  he,  the  said  C.  B.  shall  arrive  at  and  be  of  the 
age  of  twenty-one  years,  which  will  happen  on  the  day  of 

A.  D.  if  the  said  C.  B.  so  long  lives  ;  all  which  time 
ihe  said  C.  B.  as  an  apprentice,  shall  faithfully  serve,  and 
be  just  and  true  unto  him,  the  said  E.  F.  as  his  master,  and 
his  secrets  keep,  and  his  lawful  commands  everywhere  wil- 
lingly obey  :  he  shall  do  no  injury  to  his  said  master,  in  hie 
person,  family,  property,  or  otherwise  ;  nor  suffer  it  to  be 
done  by  others  :  he  shall  not  embezzle,  nor  waste  the 
goods  of  his  sakl  master,  nor  lend  them,  without  his  consent : 
he  shall  not  play  at  cards,  or  other  unlawful  games,  nor 
frequent  taverns,  or  tipling  houses,  or  shops,  except  about, 
his  master's  business,  there  to  be  done  :  he  shall  not  con- 
tract marriage,  nor  at  any  time,  by  day  or  night,  absent  him- 
self from,  or  leave  his  said  master's  service,  without  his 
consent ;  but  in  all  things,  as  a  good  and  faithful  apprentice, 
shall  and  will  behave,  and  demean  himself  to  his  said  mas- 
ter, faithfully  during  the  time  aforesaid.  And  the  said  E. 
F.  on  his  part,  for  the  consideration  of  the  premises,  doth 
covenant,  and  agree,  to,  and  with  the  said  father  and  son.. 
each  by  himself,  respectively  and  jointly,  to  teach  and  in- 
struct the  said  C.  B.  as  his  apprentice,  or  otherwise  cause 


317 

him  to  be  well  and  sufficiently  instructed  and  taught,  in  the 
art,  mystery,  trade,  and  occupation  of  after  the  b»st 

way  and  manner  that  he  can  ;  and  to  teach  and  instruct  him 
the  said  apprentice,  or  cause  him  to  be  taught  and  instruct- 
ed, to  read  and  to  write,  and  to  cypher,  as  far  as  the  four 
first  rules  of  arithmetic,  to  guard  his  morals,  and  to  train  him 
to  habits  of  faithfulness,  industry  and  economy.  And  that 
the  said  master  will  provide  for,  and  allow  to  his  said  ap- 
prentice, meat,  drink,  washing,  lodging,  and  apparel,  for 
summer  and  winter,  on  common  and  on  holy  days,  and 
all  other  necessaries,  in  sickness  and  in  health,  proper  and 
convenient  for  such  an  apprentice,  during  th6  time  of  his 
apprenticeship  ;  and  at  the  expiration  thereof,  shall  and 
will  give  to  said  apprentice  [here  insert  such  other  things, 
as  is  agreed  upon  between  the  parties.]  In  witness  where- 
of, the  said  parties  have  hereunto  interchangeably  set  their 
hands  and  seals,  the  day  of  A.  D. 
Signed,  sealed,  and  deliv-  >  A.  B.  (Seal.) 

ered,  in  presence  of     $  E.  F.         (Seal.) 

An  indenture  by  guardian  may  be  the  same  as  the  prece- 
ding, substituting  "guardian"  for  father,  and  "  ward''  for 
son  ;  but  unless  the  minor  has  property  to  indemnify  the 
guardian,  it  will  not  be  safe  for  him  to  ent^r  into  any  cove- 
nants, in  which  case  he  may  merely  bind  his  ward,  and  give 
hi?  master  the  benefit  of  his  services,  and  the  usual  right 
and  authority  over  him.  The  form  of  indenture  will  be  es- 
sentially the  same  as  to  the  contract  or  binding,  as  that  by 
select  men,  for  which  see  page  307. 

8.  A  Bond  without  condition,  from  two  persons  to  one. 

Know  all  men  by  these  presents,  that  we,  A.  B.  of 
in  the  county  of         and  C.  D    of  in  said  county,   are 

held  and  firmly  bound  unto  G.  H.  of  in  said  county,  in 
the  sum  of  five  hundred  dollars,  to  be  paid  to  the  said  G. 
H.  or  his  certain  attorney,  executors,  administrators  or  as- 
signs ;  to  which  payment  well  and  truly  to  be  made,  we 
bind  ovrselves  and  each  of  us,  our  and  each  of  our  heirs, 
executors  and  administrators,  firmly  by  these  presents,  sign- 
ed with  our  hands  and  sealed  with  our  seals.  Dated  at 
this  30th  day  of  January,  A.  D.  1823. 

In  drawing  bonds,  you  must  observe  this  rule  :  If  there 

27* 


318 

be  more  obligors  than  one,  instead  of  saying  I  bind  myself. 
my  heirs,  executors  and  administrators  ;  write  it  thus-^we 
bind  ourselves  and  each  of  us,  our  and  each  of  our  heirs, 
executors  and  administrators. 

If  more  obligees  than  one,  instead  of,  to  be  paid  to  the 
said  G.  H.  or  his  certain  attorney,  executors  or  administra- 
tors, say,  to  be  paid  to  the  said  G.  H.  I.  K.  (naming  all  the 
obligees)  or  either  of  them,  or  their  or  either  of  their  cer- 
tain attorneys,  executors,  or  administrators. 

Penal  Bond  :  or  Bond  with  a  Condition. 

Know  all  men  by  these  presents,  that  I,  John  Doe  of 
Hartford,  in  the  county  of  Hartford,  am  held  and  firmly 
bound  to  Richard  Roe  of  said  Hartford,  in  the  penal  sum  of 
sixty  dollars,  to  be  paid  to  the  said  Richard,  his  certain  at- 
torney, executors,  administrators  or  aligns  ;  to  which  pay- 
ment well  and  truly  to  be  made  and  done,  I  bind  myself, 
my  heirs,  executors  and  administrators  firmly  by  these  pre- 
sents, signed  with  my  hand  and  sealed  with  my  seal,  dated 
at  Hartford,  this  30th  day  of  January,  A.  D.  H;23. 

The  condition  of  this  obligation  is  such  that  if  the  above 
bounderi  John  Doe,  his  heirs,  executors  or  administrators, 
•hall  well  and  truly  pay,  or  cause  to  be  paid,  unto  the  above 
named  Richard  Roe,  his  executors,  administrators  or  assigns. 
the  full  sum  of  thirty  dollars,  with  the  lawful  interest  for 
the  same,  on  the  15th  day  of  June  next  ensuing  the  date 
hereof;  then  this  obligation  to  be  void,  and  of  none  effect 
or  else  to  be  and  remain  in  foil  force  and  virtue. 
Digued,  sealed  and  delivered  ) 
in  the  presence  of         $ 

Conditions  of  every  description  may  be  annexed  to  bonds, 
according  to  the  object  of  them,  and  the  contract  of  the 
parties. 

Condition  of  a  Bond  of  Indemnity,  where  one  person  is  bound 

for  another. 

The  condition  of  this  bond  is  ~uch,  that  whereas  the  above 
named  A.  B.  at  the  reque-t  :-vd  for  the  only  proper  debt  and 
duty  of  the  above  bound  C.  D.  with  him  the  said  C.  D.  i«, 
in  and  by  one  bond  and  obligation,  bearing  equal  date  with 
>he  obligation  above  written,  held  and  firmly  bound  unto  E. 


319 

F.  of,  &c.  in  the  penal  sum  of  five  hundred  dollars,  current 
money  of  the  United  States,  conditioned,  for  tin-  payment  of 
two  hundred  and  fifty  dollars,  with  legal  interest  on  the  same, 
on,  &c.  next  ensuing  the  day  of  the  date  of  the  said  recited 
obligation,  as  in  .ind  by  the  said  obligation  and  condition 
thereof,  may  more  fully  and  at  large  appear.  If,  therefore, 
the  said  C.  D.  his  heirs,  executors,  or  administrators,  do. 
and  shall  well  and  tn;ly  pay,  or  cause  to  he  paid,  unto  the 
said  E.  F.  his  executors,  administrators,  or  assigns,  the  said 
sum  of  two  hundred  and  fifty  dollars,  with  legal  interest 
on  said  day,  £.c.  next  ensuing  the  date  of  said  recited  ob- 
ligation, according  to  the  true  intent  and  meaning,  and  in 
full  discharge  and  satisfaction  of  the  said  recited  obligation  , 
then,  &ic.  or  else,  &.c. 

Condition  to  pay  an  Annuity  during  life. 
The  condition  of  tliis  oblig.ilion  is  such,  that  if  the  above 
bound  A.  B.  his  heirs,  executors,  administrators,  or  assigns, 
do,  and  shall  yearly,  and  every  year,  during  the  n-itural 
life  of  the  said  C.  D.  well  and  truly  pay,  or  cause  to  be  paid, 
unto  the  above  named  C.  D.  his,  &,c.  one  annuity,  or  year- 
ly sum  of,  &,c.  at,  or  upon  the  first  days  of  June,  Septem- 
ber, December,  and  March,  in  each  year,  by  even  and 
equal  parts  and  portions  ;  the  first  payment  thereof  to  be- 
gin and  be  made  on  the  first  day  of,  &,•-.  next  ensuint;, 
then  this  obligation  to  be  void.  But  if  default  shall  be  made, 
of,  or  in  the  payment  of  the  said  annuity,  or  yearly  sum  of, 
&c.  on  any  of  the  said  first  days,  on  which  the  same 
ought  to  be  paid,  then,  &c. 

Condition  to  save  a  town  harmless  against  a  Mustard  Child . 
The    bond  should  be  given  to  the  town,    and    not  to  the 
select-men,  by  the  father  ofthe  child,  with  surety. 

The   condition   of  the    above  obligation    is    such,  that 
whereas,  A.   B.  an  inhabitant  of  said  town  of  is  with 

child,  begotten  on  her  body  by  C.  D.  and  which  when  hi ••  n 
will  be  a  bastard,  and  is  likely  to  become  chargeable  to  said 
town  :  Therefore  if  the  above  bounden  C.  D.  the  father  of 
said  child,  or  the  above  bounden  E.  F.  his  surety,  their, 
or  either,  or  any  of  their  heirs,  executor?  or  administrators, 
do  and  sh:;ll,  from  time  to  time,  and  at  all  times  hereafter, 
fully  and  clearly  acquit  and  discharge,  or  well  and  sufficient- 


320 

ly  save  and  keep  harmless  and  indemnified  the  said  town  of, 
&c.  as  also  all  the  inhabitants  of  the  said  town  of,  &.c.  which 
now  are,  or  hereafter  shall  be  for  the  time  being  ;  and  eve- 
ry of  them,  of,  and  from  all  manner  of  expenses,  damages, 
costs  and  charges  whatsoever,  which  shall  or  may  at  any 
time  hereafter,  arise,  happen,  for,  or  by  reason  or  means 
of  the  said  A.  B.'s  being  pregnant  with  child  as  aforesaid  ; 
or  for,  or  by  reason  of  the  birth,  maintenance,  education, 
and  bringing  up  of  such  child  or  children  of  which  she  the 
said  A.  B.  is  now  pregnant,  and  shall  be  delivered  of;  and 
of,  and  from  all  other  actions,  suits,  troubles,  charges,  dam- 
ages, and  demands,  whatsoever,  touching  and  concerning 
the  same  ;  then,  &c. 

9.     OF    ARBITRATION'. 

A  submission  may  be  in  writing,  or  by  parol  agreement, 
or  by  rule  of  court.  The  parties  may  bind  themselves  by 
bond,  or  by  arbitration  notes,  or  may  rely  upon  their  reme- 
dy on  the  award.  Where  the  submission  is  by  parol,  the 
award  may  be  by  parol. 

A  general  submission  in  writing. 

Whereas  various  differences,  disputes  and  controversies 
have  and  do  exist  between  A.  B.  and  C.  D.  and  divers  suits 
have  been  commenced  and  are  now  pending  between  said 
parties.  Wherefore,  for  the  amicaHe  determination  ofthe 
same,  we,  the  said  A.  B.  and  C.  D.  do  hereby  agree  to  sub- 
mit and  refer  all  controversies,  suits,  quarrels,  and  matters 
of  dispute,  now  existing  between  us,  to  the  arbitriment,  de- 
termination and  award,  J.  S.  and  L.  31.  to  be  heard  by  them, 
on  the  day  of  A.  D.  the  said  arbitrators  being  au- 
thorized to  adjourn  such  hearing  to  any  time  afterwards,  as 
they  may  deem  necessary  and  reasonable.  And  the  said 
parties  do  hereby  mutually  agree  arid  promise,  and  bind 
themselves  to  perform  and  execute  such  award  as  said  ar- 
bitrators may  make  and  publish  in  and  upon  the  premises, 
and  that  the  same  shall  be  final  and  conclusive  on  the  par- 
ties, as  to  all  suits,  controversies,  and  matters  of  dispute 
now  existing  between  said  parties  as  aforesaid.  In  witness 
whereof,  &c.  A.  B. 

C.  D. 

To  be  duplicates,  and  one  delivered  to  each  party. 


321 

,i  submission  to  arbitration  to  be  made  a  rule  of  Court. 
Be  it  remembei-td,  that  A.  ','-.  .ml  L).  (:.  of,  &c.  being 
desirous  to  end  and  determine  divers  controversies,  - 
and  quarrels,  that  have  lately  arisen  Ix-nveou  them,  did  on, 
&c.  agree  to  submit  and  rotor  all  the  said  controversies, 
suits,  and  quarrels,  to  the  award  of  E.  F.  and  G.  H.  of,  &c. 
to  be  made  in  writing  under  their  hands  and  soals,  vVc.  And 
the  said  parties  did  mutually  promise,  and  oblige  themselves, 
that  they  would  perform  and  execute  such  award  as  the 
said  arbitrators  should  make  in  the  premises.  Now  tho 
said  parties  do  further  agree  that  the  said  submission  shall 
be  made  a  rule  in  the  court,  &c.  and  that  they  will 

be  finally  concluded  by  the  arbitration  which  shall  be  made 
in  the  premises  by  the  said  arbitrators,  pursuant  to  such 
submission.  In  witness,  &c. 

Arbitration  Bond. 

Know  all  men  by  these  presents,  that  I,  A.  B.  of  am 
holden  and  firmly  obliged  toC.  D.  of  in  the  sum  of  one 
hundred  dollars,  &c.  to  be  paid  to  the  said  C.  D.  his  attor- 
ney, executors  or  administrators,  which  payment,  well  and 
faithfully  to  be  made  and  done,  I  bind  myself,  my  heirs,  ex- 
ecutors and  administrators,  firmly  by  these  presents  ;  seal- 
ed with  my  seal,  and  dated  this  day  of  A.  D.  1823. 

The  condition  of  this  obligation  is  such,  that  if  the  above 
bounden  A.  B.  his  hens,  executors  and  administrators  for 
his  and  their  parts  and  behalf,  do  in  all  things  well  and  truly 
stand  to,  obey,  abide  by,  perform,  fulfil  and  keep  the  award, 
order,  arbitrament,  final  end  and  determination  of  G.  and  F. 
arbitrators,  indifferently  named,  elected  and  chosen  as  well 
on  the  part  and  behalf  of  the  above  bounden  A.  B.  as  of  the 
above  named  C.  D.  to  arbitrate,  award,  order,  judge  and 
determine  of  and  concerning  all,  and  all  manner  of  action 
and  actions,  cause  and  causes  of  actions,  suits,  bills,  bonds, 
specialties,  judgments,  executions,  quarrels,  controversies, 
trespasses,  damages  and  demands  whatsoever,  at  any  time 
heretofore  had,  made,  moved,  brought,  commenced,  sued, 
prosecuted,  done,  suffered,  committed  or  depending,  by,  or 
between  the  said  parties  so  as  the  said  award,  be  made  and 
given  up  in  writing  under  the  hands  and  seals  of  said  arbi- 
trators, ready  to  be  delivered  to  the  said  parties  on  or  before 
the  day  of  A.  D.  1823,  then  this  obligation  to  be  void,  &c. 

Where  the  parties  choose  an  umpire  to  decide,  in  case  the 


arbitrators  cannot  agree,  the  following  paragraph  is  to  be 
added  :  fP*- 

But  if  the  said  arbitrators  do  not  mali-?  such  their  award 
of  and  concerning  the  premises  by  the  I»I:KJ  .iforesaid,  and 
ifiu  that  case,  the  said  A.  B  his  heirs,  execrtors  and  ad- 
ministrators, for  his  and  their  p,rt  and  beb.ilf  -h,;Il  in  all 
thing?  well  and  truly  stand  to,  obey,  abide  by,  perform,  ful- 
fil and  keep  the  award,  orBer,  arbitrament j  umpirage,  final 
determination  ofC.  R.  umpire  indiiferen'.ly  chosen  between 
the  said- parties,  of  and  concerning  the  premises  so  as  the 
said  umpire  do  make  hi:  award,  or  umpirage  of  and  con- 
cerning the  premises,  and  deliver  th«  same  in  writing,  un- 
der his  hand  and  seal  to  the  said  parties  on  or  before  the 
day  of  A.  D.  18^3.  Ti^n  this  ••'  li.ttiun  to  be  void, 
otherwise  to  remain  in  full  force  and  virtue.  A.  B. 

Signed,  sealed  and  delivered 
in  the  presence  of 

An  Award  in  Writing. 
To  all  people  to  whom  these  presents  shall  come,  we  A. 

B.  of          C.  D.  of          and  E.  F.  of         send  greeting.— 
Whereas  G.  H.  of      and  1.  K.  of        did  enter  into  mutual 
bonds  or  obligations  to  each  other,  bearing  date  respective- 
ly on  or  about  the  20th  day  of  February  last  past,  in  the  penal 
sum  of  five  hundred  dollars  respectively,   conditioned  for 
their  respective  submitting  to  the  award  of  us  the  said  A.  B. 

C.  D.  and  E.  F.  or  any  two  of  us,  of  and  concerning  all  ac- 
tions, suits,  quarrels,  controversies,  damages  &  demands  be- 
tween them,  so  as  such  award  were  made  by  us  or  any  two  of 
us,  in  writing  under  our  hands  and  seals,  on  or  before  the 
20th  day  of  March  instant,  as  by  the  said  respective  bonds 
and  conditions,   relation  unto  them  respectively  being  had 
may  more  fully  appear  :  Now  know  ye,  that  we  the  said  A.  B. 
C.  D..  E.  F.  having  examined  the  accounts  and  heard  the 
testimony  of  both  the  said  parties  in  difference,    and  duly 
weighed  and  considered  the  same,  do  make,  and  publish  this 
our  award  and  final  determination,  between  the  said  parties  ; 
and  do  hereby  adjudge,  award  and  order,  that  the  said  G. 
H.  do  and  shall  pay  or  cause  to   be  paid  to  the  said  I.  K. 
his  executors  or  administrators,  the  sum  of  one    hundred 
dollars,  on  or  before  the  10th   day  of  April  next,  at  the 
dwelling-house  of  I.  K.  in         and  upon  payment  thereof 


323 

the  said  J.  H.  and  I.  K.  shall  duly  execute  and  deliver  to 
each  other  mutual  general  releases  of  all  actio.. 
counts,  damages,  and  demands  whatsoever,  from  tin- 
ning of  the  world  to  the  day  of  the  d.ite  of  the  said  ). 
obligations.     In  witness  whereof,  we  have  hereunto  set  our 
hands  and  seals,  the  10th  day  of  Feb    A.  D.  l;,. 
Signed,  sealed,  published  and  delivered  i 

by  the  said  aibitraton,  as   their  tin  -1  \ 

award  and  arbitrament,  in  presence  01") 

But  the  most  common  and  simple  mode  is  to  make  a  p;i- 
rol  submission  and  execute  arbitration  notes,  which  are  in 
common  form,  each  party,  with  or  without  surety,  execu- 
ting a  note  ;  which  are  delivered  to  the  arbitrators,  who 
will  deliver  up  to  the  party  in  whose  favour  they  decide 
his  note  to  be  cancelled,  and  also  deliver  to  him  the  note  of 
the  other  party,  endorsed  down  to  such  sum  as  they  award 
against  him. 

Endorsement  on  an  arbitration  note. 

This  note  having  been  executed  and  delivered  to  us  by 
the  within  named  A.  B.  to  enforce  the  award  we  might 
make  and  publish  in  and  upon  certain  matters  of  dispute 
and  controversy,  existing  between  him,  and  the  within  nam- 
ed C.  D.  by  said  parties  submitted  to  our  arbitrament  and 
determination  ;  and  having  this  day  of  ,  fully  heard 
said  parties  in  all  the  matters  submitted  as  aforesaid,  we 
have,  and  do  hereby  award  that  the  said  A.  B.  pay  the  said 
C.  D.  the  sum  of  ,  and  the  costs  of  this  arbitration, 

amounting  to          dollars,  making  in  the  whole  the  sum  of 
dollars,  and  do  hereby  endorse  said  note  down  to  said 
sum  of  dollars.  E.  F. 

G.H. 
10.  A  bill  of  sale. 

Know  all  men  by  these  presents,  that  I,  A.  B.  of  ,  for 
the  consideration  of  one  hundred  dollars,  received  to  my 
full  satisfaction,  of  C.  D.  of  ,  have  bargained  and  sold, 
and  do  by  these  presents  bargain  and  sell  unto  the  said 
C.  D.  the  several  articles  of  furniture  or  household  goods, 
,/contained  in  the  schedule  hereunto  annexed.  And  I  do, 
for  myself  and  executors,  agree  to  warrant  and  defend  to 
the  said  C.  D.,  his  executors,  fldn»ii)i«irat.>rs  and  ai 
all  and  singular  the  same  goods,  in  consideration  aforesaid, 


by  these  presents  ;  of  which  said  goods  I  have  given  the 
said  C.  D.  possession  before  the  execution  hereof,  [or 
which  said  goods  are  now  at  in  the  possession  of  L.  M.] 
In  witness  whereof  &c. 

Where  the  conveyance  is  as  security  only,  add  the  fol- 
lowing provision  :  Provided  however,  and  it  is  hereby 
agreed,  that  whereas,  the  said  A.  B.  is  indebted  to  the  said 
C.  D.  in  the  following  sums,  viz.  one  note  dated  &,c.  ot' 
$50  one  dated  &.c.  of  $^0,  both  on  interest,  and  payable 
to  the  said  C.  D  ;  and  also  on  book  $i>0.  Now,  if  the  said 
A.  B.  shall  pay  or  cause  to  be  paid  said  several  sums,  on 
or  before  the  day  of  ~  A.  D.  then  this  bill  of  sale, 
conveyance  and  agreement  to  be  void,  otherwise  to  be  ef- 
fectual in  law. 

11.  An  assignment  of  goods  to  trustees  for  the  benefit  of 

creditors. 

Know  all  men  by  these  presents,  that,  Whereas  I.  A.  B. 
of  ,  being  indebted  to  the  several  persons  named  in 

the  schedule  hereunto  annexed,  in  the  sums  affixed  to  their 
names  respectively  or  thereabouts,  and  being,  from  various 
misfortunes  and  losses  in  business,  wholly  unable  to  meet  said 
contracts,  and  pay  said  debts  according  to  the  terms  there- 
of, do  by  these  presents,  assign,  transfer  and  convey  all 
and  singular,  the  goods  and  articles  of  personal  property 
specified  and  contained  in  the  annexed  list  or  schedule  un- 
to C.  D.,  E.  F.  and  G.  H.  all  of  ,  as  trustees  for  and  in 
behalf  of  the  said  A.  B.  on  one  part,  and  the  said  creditors 
hereinafter  named  in  the  schedule  annexed,  on  the  other 
part,  to  be  by  them  taken  into  possession,  and  the  same  to 
sell  and  dispose  of,  in  the  manner  they  may  deem  most 
for  the  interest  of  said  parties,  and  receive  the  avails  there- 
of, &  the  same  to  apply  in  payment  of  the  claims  of  said  cred- 
itors, named  in  said  schedule,  &.  if  the  avails  of  said  property 
shall  not  be  sufficient  for  the  payment  of  the  whole  of  said 
claims,  the  same  are  to  be  paid  and  satisfied  in  just  and 
equal  proportions,  according  to  the  amount  of  said  prop- 
erty and  their  respective  debts  ;  (or,  and  the  said  avails 
to  apply  in  the  payment  of  the  debts  of  the  creditors  nam- 
ed in  said  schedule  as  follows,  viz.  the  debts  of  L,  M,  and 
O,  which  are  for  endorsing  for  me  at  the  Bank,  and 


are  deemed  honorary  debts,  are  in  the  first  place  to  be  paid 
in  full,  and  if  there  is  not  a  sufficiency,  then  in  equal  pro- 
portions, according  to  the  amount  of  said  property,  and  their 
respective  debts  ;  and  the  residue  of  the  avails  of  said 
property  is  to  be  applied  in  satisfaction  of  the  debts  of  the 
other  creditors  named  in  said  schedule,  and  if  it  is  not  suf- 
ficient to  pay  the  same  in  full,  then  their  said  debts  are  to 
be  paid  in  equal  proportions,  according  to  their  respective 
claims  as  aforesaid  ;  and  if  any  thing  remains  it  is  to  be 
applied  by  said  trustees  among  all  the  creditors  of  said  A. 
B.  not  named  in  said  schedule,  in  proportion  to  their  re- 
spective claims.  And  it  is  provided,  that  if  either  of  said 
trustees  shall  refuse  to  accept  said  trust,  or  shall  die  be- 
fore completing  the  execution  of  the  same,  the  other  two, 
or  in  case  of  the  refusal  or  death  of  two,  the  other  one 
shall  have  and  possess  the  same  power  and  authority  to 
perform  and  execute  said  trust,  as  is  herein  given  to  the 
whole  of  said  trustees. 

In  witness  whereof  &c.     Dated  &,c.  A.  B. 

A  schedule  of  the  property,  and  of  the  creditors,  speci- 
fying the  amount  of  their  respective  debts,  must  be  annexed. 

12.  Jl  common  letter  of  licence. 

To  all  people  to  whom  these  presents  shall  come,  w»> 
whose  names  are  underwritten,  creditors  of  J.  W.  late  of 
H  send  greeting.  Whereas  the  said  J.  W.  is  indebted 
to  us  his  said  creditors,  severally,  in  divers  «urns  of  mon- 
ey, and  hath  not  wherewithal  to  satisfy  us  at  present,  and 
we  and  every  one  of  us  minding  to  grant  unto  him  favour 
and  time  for  the  payment  of  the  same.  Know  ye,  that  we 
the  said  creditors,  and  every  one  ot  us  being  fully  satisfied 
of  the  good  will  and  desire  which  the  said  J.  W.  hath  tu 
see  the  several  debts  and  sums  of  money  satisfied  and  paid, 
have  given  and  granted,  and  every  one  of  us  for  himself 
and  for  his  own  proper  debt  and  duty,  part  and  portion  on- 
ly, doth  by  these  presents  give  and  grant  unto  the  said  J. 
W.  sure,  full  and  free  liberty,  licence  and  safe  conduct,  as 
much  as  in  us  severally  is,  that  the  said  J.  W.  with  all  lii> 
goods  and  chattels,  debts,  duties  and  other  things  whatso- 
ever, freely,  peaceably  and  quietly,  at  his  own  free  choice, 
election  and  pleasure,  shall  and  may,  go,  come,  abide,  pass 
and  repass  at  all  and  every  time  and  times  from  the  day  of 
28 


326      , 

the  date  hereof  unto  the  full  end  and  term  of  four  years 
now  next  ensuing,  and  fully  to  be  completed  and  ended  : 
And  we  the  said  creditors  and  every  one  of  us  severally 
for  himself,  his  executors,  administrators,  partners  and  as- 
signs, do,  and  doth  by  these  presents  severally  covenant, 
promise,  grant  and  agree  to  and  with  the  said  J.  VV.  that 
neither  we  the  said  creditors  nor  any  of  us,nor  any  other  per- 
son or  persons  for  us, or  any  of  us,  or  by  our  authority, assent, 
consent,  or  procurement,  the  said  J.  VV.  or  any  of  his  goods, 
chattels,  debts,  duties  and  other  things  whatsoever,  shall 
or  will  sue,  arrest,  prosecute,  molest,  attach,  trouble  orjen- 
cumber  during  the  time  aforesaid ,,but  suffer  him  and  them, 
so  that  he  and  they  freely,  peaceably  and  quietly  at  his  own 
free  choice,  election  and  pleasure  shall  and  may,  go,  come, 
abide,  pass  and  repass,  at  all  and  every  time  and  times,  from 
the  day  of  the  date  hereof,  unto  the  full  end  and  term  of 
four  years,  nor  compel  him  the  said  J.  W.  during  the  term 
aforsaid,  to  find  or  provide  any  surety  or  security,  for  the 
satisfaction  or  payment  of  the  said  several  debts,  or  any  of 
them,  or  any  part  or  parcel  thereof,  other  than  all  and 
every  one  of  us  now  severally  have  and  hath  for  the  same. 
And  further,  we  and  all  and  every  of  us  creditors  afore- 
said, are  agreed  and  contented,  and  do  hereby  severally 
for  ourselves,  and  our  several  executors,  administrators, 
partners  and  assigns,  covenant  and  agree  to  and  with  the 
s;iid  J.  W.  that  if  it  shall  happen  at  any  time  or  times  here- 
after, during  the  term  aferesaid,  that  he  the  said  J.  W.  is 
or  shall  be  by  his  body,  goods  or  chattels  by  us  or  any  of 
us,  or  by  our  or  any  of  our  authority,  assent,  consent  or 
procurement,  contrary  to  the  true  meaning  hereof,  arrested, 
prosecuted,  molested,  attached  or  otherwise  charged, 
troubled  or  encumbered,  that  then  he  the  said  J.  W.  his 
heirs,  executors  or  administrators,  is  or  shall  be,  and  is  and 
are  for  ever  more  by  these^  presents  be  clearly  acquitted, 
exonerated,  and  discharged,  of  and  from  him  and  them  of 
us,  by  whom  the  said  J.  W.  shall,  contrary  and  against  the 
lenor,  form  and  true  effect  of  these  presents,  be  arrested, 
molested,  prosecuted  or  otherwise  charged,  troubled  or  en- 
cumbered, of  and  from  all,  and  all  manner  of  actions,  suit?;. 
..'tuims,  debt?,  judgments,  statutes  and  demands  whatsover. 
In  witness  whereof  we  the  said  creditors  of  the  said 


327 

J.  W.  have  hereunto  set  our  hands  and  seals  the  day 
of  A.  D. 

Signed,  sealed  and  delivered 
in  the  presence  of 

13.  General  letter  of  credit. 

Hartford,  Jan.  30,  1823. 
Sir — 

The  bearer  Mr.  T.  H.  being  on  his  travels,  may  have 
occasion  for  money  ;  please  to  furnish  him  as  his  occasion- 
require,  taking  his  receipts,  and  your  draughts  for  the 
value  shall  receive  due  honour  from 

Sir,  your  humble  servant, 

C.  D. 
To  Mr.  J.  S.  merchant,  London. 

14.  A  general  letter  of  attorney. 

Know  all  men  by  these  presents,  that  I,  A.  B.  of  If 
have  made,  ordained,  constituted  and  appointed,  and  by 
these  presents  do  make,  ordain,  constitute  and  appoint  ('. 
D.  of  W  ,  my  true  and  lawful  attorney,  for  me  and  in 
my  name  and  for  my  use,  to  ask,  demand,  sue  for,  recover 
and  receive  of  and  from  all  person  and  persons  whatsoever, 
all  sum  and  sums  of  money,  debts,  dues,  claims  and  demands 
whatsoever,  now  due,  owing  or  accruing  tome,  and  to  give 
good  and  sufficient  discharges  for  the  same,  and  to  adjust, 
settle  or  compound  all  debts  or  demands  due  to  me,  and  to 
accept  such  security  or  satisfaction  for  the  same,  as  }x> 
shall  think  fit.  And  I  do  hereby  give  and  grant  to  my  said 
attorney  my  full  and  whole  power  in  and  concerning  t!i<- 
premises,  and  will  ratify  and  confirm  whatsoever  he  shall 
lawfully  act  or  do  therein.  In  witness  whereof  I  have 
hereunto  set  my  hand  and  seal  the  day  of  A.  D. 

Signed,  sealed,  and  delivered  } 
in  the  presence  of  $ 

Another  with  the  power  of  substitution. 
1  A.  B.  of  P  in  the  county  of  B  and  common- 

wealth of  Massachusetts,  do  hereby  constitute  and  appoint 
H.  S.  Esq.  of  B  in  the  county  of  S  ,  my  sittonr  \ . 
in  all  cases  moved  or  to  be  moved,  forme  or  against  me,  in 
this,  or  any  other  of  the  United  States  of  America,  in  mi 


328 

name  to  appear,  plead  and  pursue  to  final  judgment  and 
execution,  with  the  right  and  power  of  substitution  :  wit- 
ness my  hand  and  seal  this  day  of  A.  D. 

B   S     )  A.B.(Sea.) 

D   R    i    Witnesses. 

Boston,  Jan.  30,  1823. 
Suffolk  county  ss. 

A.  B.  acknowledged  this  instrument  to  be  his  free  act 
and  deed.  J.  p.  justice  of  the  peace. 

I  R.  S.  within  named,  do  hereby  substitute  and  appoint 
S.  S.  Esq.  of  H  in  the  county  of  H  in  the  state  of 
Connecticut,  attorney  to  the  within  named  A.  B.  by  virtue 
of,  and  according  to  the  power  to  me  within  given,  as  wit- 
ness my  hand  and  seal  this  day  of  A.  D. 

R.  S. 

Signed,  sealed,  and  delivered 
in  the  presence  of 

1 5.    A  letter  of  attorney  irrevocable  to  receive  money  due 

on  a  bond. 

Know  all  men,  &c.  that  I,  A.  B.  of,  &c.  have  made,  or- 
Jained,  and  in  my  stead  and  place,  put,  and  constituted  C. 
D.  of  &c.  my  true  and  lawful  attorney,  irrevocable,  for 
me  and  in  my  name,  but  to  the  use  of  him  the  said  C.  D. 
to  demand,  recover,  and  receive,  of  E.  F.  and  G.  H.  of  .• 
&c.  the  sum  of  one  hundred  dollars,  due  unto  me;  if»nd 
by  one  bond  or  obligation,  bearing  date,  &c.  Giving  5nd 
by  these  presents  granting,  unto  my  said  attorney,  my  full 
power  and  authority,  in  my  name,  to  do  all  and  every  fyd 
and  acts,  thing  and  things,  device  and  devices,  in  the  law, 
whatsoever,  for  the  recovery  of  said  debt,  as  fully  to  all 
intents  as  1  myself  might  or  could  do,  and  upon  receipt 
thereof,  acquittances,  or  other  discharges,  for  me  and  in  my 
name,  to  make,  seal,  and  execute,  hereby  ratifying  and  al- 
lowing all  and  whatsoever  my  said  attorney  shall  lawfully 
do.  or  cause  to  be  done,  in  and  about  the  premises,  by 
virtue  of  these  presents.  In  witness,  &c. 

1G.  A  will  of  real  and  personal  estate. 
In  the  name  of  God,  amen.     I   P.  B.  of  H  ,  in  the 

county  of  M  ,  being  of  sound  and  disposing  mind  and 


memory,  do  make  and  ordain  this  my  last  will  and  testament. 
in  manner  and  form  following  :  that  is  to  say,  imprimis,  I 
will  that  all  my  debts  and  funeral  charges  be  paid  and  di* 
charged  by  my  executrix,  hereinafter  named  :  Item,  I  give 
and  demise  unto  my  son  A,  his  heirs,  and  assigns  forever, 
the  house  and  land  situated  and  lying  in  the  town  of  W 
Item,  I  do  give  and  demise  unto  S.  B.  my  brother's  son,  all 
that  cottage  or  tenement  situated  in  the  town  of  \\  in 
the  county  of  H  ,  now  in  the  occupation  of  J.  L.  to 

to  the  said  S.  B.  his  heirs  and  assigns  forever.  Iron,  I  do 
give  unto  my  loving  wife  B.  S.  all  the  rest  of  my  goods 
and  chattels,  and  personal  estates  whatsoever.  Also  I  do 
give  and  demise  unto  B.  my  said  wife,  her  heirs  and  assigns 
forever,  all  rny  land  and  tenements  lying  in  the  town  oi 
W  in  the  county  of  H  ,  and  now  in  several  occupa 
tions  of  D.  J.  and  B.  P.  or  their  under  tenants,  and  also 
the  messuage  or  tenement  situated  in  the  town  of  W 
and  now  in  my  occupation,  together  with  the  orchard  and 
all  other  appurtenances  thereunto  belonging.  Lastly,  I  do 
make  and  constitute  B.  my  wife,  executrix  of  this  my  last 
will  and  testament.  In  witness  whereof  I  have  set  my 
hand  and  seal  this  day  of  in  the  year  of  our  Lord 
1823.  P.  B. 

Signed,  sealed,  and  published  (and  pronounced)  by  tho 
said  P.  B.  as  his  last  will  and  testament,  who  in  his  pres- 
ence, and  the  presence  of  each  other,  have  hereunto  sub- 
scribed our  names. 

R.  P.    > 

M.  O.  }    Witnesses. 

A.  R.  ) 

Form  of  certificate  w/ien  proved  before  a  Justice. 
H  county,  s&.  H         day  of  A.  D. 

Personally  appeared  before  me  R.  P.  and  made  solemn 
oath,  that  he  attested  the  within  will  of  P.  B.  and  Fubf-ci  i- 
bed   the  same  in  the  presence  of   the  testator,  and  in  t'le 
presence    of  the  other  two  subscribing  witnesses  to  said 
will,  and  that  they  also  subscribed  and  attested  paid  •• 
the  presence  of  the  deponent  and  in  the  presence  <••? 
testator,  and  that  said  testator  at  the  time  of  the 
of  said  will,  was  of  sound  mind  and  memory, 
28* 


330 

and  published  said  will  in  the  presence  of  said  deponent 
and  the  other  subscribing  witnesses  thereto. 

J.  P.  justice  of  the  peace. 

v4  Ziill  of  personal  estate  only. 

1,  A.  B.  of  &,c.  do  make  and  ordain  this  my  last  will 
and  testament,  in  mannerand  form  following,  viz.  I  give  and 
bequeath  to  my  dear  brother  the  sum  of  thirty  dollars  to 
buy  him  mourning.  I  give  and  bequeath  to  my  son  J.  A. 
the  sum  of  six  hundred  dollars.  1  give  and  bequeath  to 
my  daughter  E.  A.  the  sum  of  three  hundred  dollars,  and 
to  my  daughter  A.  A.  the  like  sum  of  three  hundred  dollars. 
All  the  rest  and  residue  of  my  estate,  goods  and  chattels,  I 
give  and  bequeath  to  my  dear  beloved  wife  E.  R.  whom  I 
nominate,  constitute  and  appoint  sole  executrix  of  this  my 
last  will  and  testament,  hereby  revoking  all  other  and  for- 
mer wills  by  me  at  any  time  heretofore  made.  In  witness 
whereof  I  have  hereunto  set  my  hand  and  seal  the 
day  of  in  the  year  of  our  Lord 

Signed  and   published 
in  the  presence  of 

The  law  does  not  require  that  a  will  of  personal  prop- 
erty only  should  be  witnessed,  but  it  is  prudent  that  it 
should  be  ;  but  no  devise  of  real  estate  is  valid  unless  at- 
tested by  three  witnesses,  all  signing  in  the  presence  of  the 
testator.  The  executor  must  procure  the  will  to  be  prov- 
ed and  recorded  in  the  probate  office  within  thirty  days 
after  the  death  of  the  testator,  and  he  incurs  a  forfeiture 
of  seventeen  dollars  for  every  month's  neglect.  No  non 
cupitive  or  unwritten  will  now  is  valid,  but  all  wills  wheth- 
er of  personal  or  real  estate  must  be  in  writing,  and  sub- 
scribed by  the  testator,  and  the  only  difference  between 
a  will  of  personal  and  real  estate  is,  that  the  former  is  not 
to  be  attested  by  subscribing  witnesses. 


331 

OMISSION. 

The  following  having  been  omitted  in  its  place,  is  inserted 
here. 

Process  and  Sentence  to  the  Workhouse. 
To  A.  B.  Esq.  of        justice  of  the  peace  for  the  county 
of         ,  comes  C.  D.  of  said  ,  one  of  the  Select-men 

(or  a  grand  juror,  or  any  house  holder),  and  complains  and 
informs,  that  G.  H.  of  said  town  is,  and  for  a  long  time 
hath  been,  a  common  drunkard,  (or  is  a  common  idler  and 
mis-spends  his  time,  and  does  not  provide  for  the  support 
of  himself  and  family,)  he  the  said  G.  H.  having  a  family 
consisting  of  who  are  exposed  to  want  from  the  idleness 
and  neglect  of  the  said  G.  H.  ;  and  the  said  C.  D.  prays  that 
process  may  issue  against  the  said  G.  H.  that  he  may  by  ex- 
amined and  dealt  with  according  to  the  statute  in  such  case 
provided. 

Warrant  same  as  in  other  criminal  cases. 

Record. 

Be  it  remembered  that  at  a  court  holden  this         day  of 
A.  D.      ;  at         in  the  county  of          ,  G.  H.  of         , 
was  brought  before  me  by  virtue  of  a  warrant  issued  on 
the  complaint  of  C.  D.  of  Select-man  of  said 

charging  the  said  G.  H.  with  being  a  common  drunkard,  (or 
a  common  idler,  who  mis-spends  his  time,  and  does  not  pro- 
vide for  the  support  of  himself  and  family)  ;  and  the  said 
G.  H.  being  required  to  answer  to  said  complaint,  says  he 
is  not  guilty  ;  and  having  inquired  into  the  facts,  1  do  find, 
that  the  said  G.  H.  is  a  common  drunkard,  as  charged  in 
said  complaint,  whereupon  it  is  considered  that  he  be  pun- 
ished by  confinement  in  the  workhouse  and  house  of  cor- 
rection, in  said  town  of  ,  for  the  period  of  thirty  dnys, 
(the  time  cannot  exceed  forty  days,)  and  to  be  kept  at  hard 
labour  therein.  J.  P.  justice  of  the  peace. 

Warrant  of  commitment, 
To  any  constable  of  the  town  of  in  the  county  of 

,  Greeting  : 

Whereas  G.  H.  of  was  brought  before  rne  on  the 

day  of  on  the  complaint  of  C.  D.,  Sdechn.n  of 

said  town  of        charged  with  being  a  common  drunkard  ; 


and  having  inquired  into  the  facts  set  forth  in  the  complaint. 
I  found  that  they  were  true,  and  that  said  G.  H.  was  a  com- 
mon drunkard,  as  charged  therein  ;  whereupon  it  was  con- 
sidered that  he  be  punished  by  confinement  in  the  work- 
house and  house  of  correction,  in  and  for  said  town  of 
for  the  term  of  thirty  days  from  said  day  of  to  be 
kept  at  hard  labour  therein.  Wherefore,  by  authority  of 
the  State  of  Connecticut,  and  by  virtue  of  the  statute  in 
such  case  provided,  you  are  hereby  commanded  to  take 
and  convey  the  said  G.  H.  to  said  workhouse  and  house  of 
correction,  in  said  ,  and  him  deliver  to  the  master  or 

keeper  of  the  same,  who  is  hereby  required  to  receive  the 
said  G.  H.  and  him  keep  within  said  workhouse,  at  hard 
labour,  for  and  during  the  term  of  thirty  days  from  the 
aforesaid  day  of  A.  D.  ,  and  then  to  discharge 

the  said  G.  H.  ;  and  you  are  to  leave  with  said  master  or 
keeper  this  warrant,  which  shall  be  his  authority  for 
receiving  and  detaining  said  G.  H.  as  required  herein. 
Hereof  you  are  not  to  fail,  but  make  due  service  of  thi* 
warrant. 


INDEX. 


PAGE. 

Attachment,  recognizance  on, 

when  surety  is  required  in  same,  9 

when  several  defendants  in  different  counties,  how 

directed,  10 

how  directed  to  indifferent  person, 
Special  deputations  by  sheriffs, 

may  be  served  in  any  part  of  the  State,  10 

service  of,  203 

must  take  personal  property  if  it  can  be  found,       204 
partnership  property,  how  taken, 
bank  shares,  how  attached,  205 

property  taken  must  be  removed,  206 

property  not  holden  but  sixty  days,  206 

of  the  attachment  of  property  which  has  been 

previously  attached, 
when  the  body  is  taken,  and  goods  are  afterwards 

discovered,  may  be  released,  and  the  goods 

taken,  207 

copy  to  be  left,  208 

when  land  is  Attached,  copy  to  be  left  at  the  town 

clerk's  office,   P 
of  attachment  of  the  body, 
of  breaking  doors, 
of  property  exempted, 
of  rescue  on  mesne  process, 
returns  on, 

where  real  estate  is  attached, 
of  attachment  of  husband  and  wife, 
persons  exempted  from  arrest, 
drrests.,  ex-officio  by  Justices  at  commom  law, 

for  breach  of  Sabbath,  &c.  without  warrant  by 


statute, 


12 


of  felons  without  warrant, 


on  warrant, 


2(50 


Apprentices,  when  committed  to  the  house  of  correction,  21 

C  f  !•  ?f4 

form  of  proceedings. 


334 

when  justified  in  fleeing  from  his  master  29 

Adjournment,  where  the  defendant  is  out  of  the  State,  40 

on  motion,  46 

Amendments,  when  allowable,  47 

Abatement,  pleas  of,  when  to  be  made,  48 

causes  of,  49,  50 

form  of  pleading,  50 

Auditors,  when  to  be  appointed,  58 

Appeals,  when  allowable  and  how  to  proceed,  61,  63 

Assumpsit,  declarations  in,  68 

on  notes,  promisee  against  promisor,  68 

riote  executed  by  partners,  69 

for  or  against  executor  or  administrator,  60 

Form  of  judgment  and  execution  against  executor 

or  adminstrator,  70 
Declaration  by  the  holder  of  a  nole  not  negotiable 

against  the  endorser,  71 

Of  negotiable  notes,  75 

Declaration  against  the  maker,  76 
Endorser  against  the  holder,                         76,  77 

on  a  receipt  of  property  taken  by  an  officer,  77 

on  an  order,  payee  against  the  acceptor,  79 

against  the  drawer  of  an  order  not  accepted  79 

on  account  stated,  80 

on  due  bill,  80 
General  count,  or  declaration  for  money  had 

and  received,  80 

for  goods  sold  and  delivered,  81 

same  where  the  price  is  agreed  on,  81 
For  labour  and  services  performed  where  the 

price  is  agreed  on,  81 
For  the  use  and  occupation  of  real  estate, 

where  the  rent  is  agreed  on,  82 

where  the  rent  is  not  agreed  upon,  82 

Declaration  against  a  town  for  supporting  a  pauper,   83 

Account,  action  of,  declaration,  83 

Plea  and  record  ofjudgment,  84 

Assault  and  Battery,  declaration, 

Actions  on  Statutes,  113 
Arson,  causing  the  death,  or  endangering  the  life  of  a 

person,  complaint  for,  153 


Burning  magazine,  complaint,  158 

For  burning  public  buildings,  158 

complaint  for,  160 

burning  house,  &c.  to  defraud  insurers,  160 

Abortion,  administering  poison  to  procure,  "    155 

Assault,  with  intent  to  kill  or  rob,  complaint  for,  156 

secret,  complaint  for,  177 

Adultery,  complaint  for,  1 78 

Appeal  in  criminal  cases,  183 

recognizance,  184 

"Accessories,  184 

Attorney,  power  of,  to  sell  land,  314 

Arbitration,  320 

general  submission  in  writing.  320 

submission  to  be  made  a  rule  of  court,  321 

award  in  writing,  322 

note,  endorsement  on,  323 

Assignment,  to  trustees  for  benefit  of  creditors,  324 

Bail-bond,  the  principal  may  apply  to  a  justice,  for  war- 
rant to  arrest  his  bail,  15 

Bail,  special,  when  required,  43 

surrender  of  his  principal  in  court,  44 

mittimus,  when  he  is  to  be  committed,  44 

bonds  for  prosecution,  45 

Book-debt,  action  of,  85 

declaration,  husband  and  wife,  same,  85 

plea  where  the  defendant  claims  a  balance,  85 

record  and  recognizance,  86 

Bastardy,  proceedings  in,  113 

complaint,  during  pregnancy,  114 

plea  and  record  of  judgment,  115 

recognizance  and  mittimus,  116 

complaint  after  delivery,  1 17 

by  Select-men,  118 

Binding  over,  in  criminal  cases,  145 

Bastard-child,  complaint  for  concealing 

the  death  of,  150 

Bond,  without  condition,  317 

penal,  or  with  condition,  318 
with  condition  of  indemnity,  where  one  person  is 

bound  for  another,  3 1 8 


336 

to  pay  an  annuity  during  life,  319 

To  save  a  town  harmless  against  a  bastard  child,     319 

arbitration  bond,  321 

Bribery,  complaint  for,  171 

Bigamy,  complaint,  179 

Bills  of  exchange,  form  of,  and  protest,  309 

ofsale,  323 

for  the  payment  of  money,  form  of,  310 

Betting,  on  a  horse  race,  complaint  for,  181 

-  Crimes,  of,  in  general,  151 

must  be  prosecuted  in  the  county  where  committed,  1 44 

the  capacity  for,  152 

Complaint,  by  whom  made,  147 

Criminal  cases,  trials  in,  148 

judgment  in,  148 

process,  service  of,  268 

search  warrant,  service  of,  270 

returns  on  criminal  process,  272 

on  search  warrant,  272 

on  warrant  of  distress,  273 

for  inflicting  corporal  punishment,  274 

ex  officio  returns,  for  breach  of sabbaths  274 

for  drunkenness,  274 

for  profane  swearing,  275 

for  riot,  275 

complaint  for  murder,  152 

for  manslaughter,  152 

for  perjury,  with  intent  to  take  the  life  of  a  person,  153 

Counterfeiting,  coin,  complaint  for,  162 

for  uttering,  163 

for  making  plate  for  counterfeiting,  163 

for  possessing,  with  intent  to  pass  counterfeit  bills,  163 

for  selling  with  intent  to  have  them  passed,  164 

Constables,  appointment  of,  1 87 

oath  of  office,  188 

to  raise  hues-and-cries,  188 

their  powers  to  serve  process,  1 89 

to  make  arrests  ex-qflicio,  1  90 

to  suppress  riots,  190 

Collectors  of  taxes,  194 

when  appointed  by  Select-men,  280 


337 

Collectors,  execution  against,  280 

Children,  when  bound  out  by  Select-men,  28,  302 

form  of  indenture,  302 

when  sentenced  to  house  of  correction,  31 

Creatures  impounded,  when  no  owner  appears,  ho\v 

proceeded  with,  200 

Civil  process,  how  served,  201 

Counterfeit  bills,  justice  to  seize  and  deface  the  same,     J3 
may  issue  a  warrant  to  bring  the  person  be- 
fore him,  13 
action  to  recover  value  of  same  127 

Gourts,  how  to  preserve  order  in,  65 

Contempt,  punishment  for,  66 

Form  of  record  and  mittimus  for  same  67 

Covenant,  declaration  of,  95 

Carriages,  action  for  injuries  by,  J30 

Confession,  judgment  by,  on  book,  142 

on  note,  142 

Commitment,  in  criminal  cases,  150 

costs  and  fines,  160,  184 

Death,  sudden  and  untimely,  proceedings  in  such  case,     14 

form  thereof,  14 

Depositions,  taken  by  justices,  22 
cause  of  taking  same,  notice  to  the  adverse  party,     22 
when  necessary,  03 
form  of  certificate  and  direction,  23 
form  of  capias  and  mittimus,  when  witness  refu- 
ses to  attend  or  testify,  24 

Deeds,   acknowledged  before  justice,  25 

executed  by  executors  or  administrators,  310 

by  guardians,  for  sale  of  minor's  land,  311 

mortgage,  312 

executed  by  attorney,  313 

when  executed  out  of  the  state,  25 
when  executed  by  an  attorney,  how  acknowledged,  25 

Defaults,  40 

record  of,  42 

Debt,  action  of,  87 

declaration,  on  bond,  87 

onjudgment,  87 

on  award,  88 

29 


338 

Debt,  on  recognizance,  88 

Dogs,  action  for  mischief  done  by,  129 

Demurrer,  142 

Drunkenness,  complaint  for,  180 

Execution,  concerning,  in  general,  63 

alias,  when  issued,  128 

levied  on  goods  which  had  been  previously  levied 

on,  131 

of  sale  of  goods,  on  249 

how  levied  on  growing  crops,  232 

how  levied  on  a  term  for  years,  233 

when  the  body  is  levied  on,  23o 

when  partnership  property  is  taken,  25g 

when  bank  stock  is  levied  on,  34 9 

when  land  is  levied  on,  241 

of  fees  on  same,  246 

how  served  in  common  cases,  228 

how  levied  against  executors  or  administrators,  248 
in  an  action  of  ejectment,  how  served,  249 

Return,  or  endorsement  where  land  is  levied  on,  257 
where  a  second  levy  and  sale  of  goods  is  made,  252 
where  the  debtor  is  out  of  the  precincts  of  the 

officer,  and  insufficient  property  can  be  found, 253 
where  bank,  or  other  stock,  is  taken  and  sold,  254 
where  grain  growing  is  levied  on,  255 

where  partnership  property  is  levied  on  for  the 

separate  debt  of  one  of  the  partners,  256 

where  the  body  is  taken  and  committed,  257 

non  est  inventus,  257 

where  the  debtor's  body  is  arrested,  released, 

and  goods  taken,  258 

where  real  estate  is  levied  on,  and  set  off,  258 

where  land  is  levied  on  belonging  to  tenants  in 

common,  269 

where  mortgaged  premises,  261 

of  return  on  execution  on  foreign  attachment,         26$ 

on  do.  against  executor  or  administrator,  263 

on  ejectment,  163 

Error,  writ  of,  in  criminal  cases,  145, 184 

writs  of,  how  served,  216 

return  on,  226 

Electors'  meetings,  how  warned,  199 


339 

Embezzling  record,  1 7 1 
Factories,  to  be  visited  by  civil  authority  and  select-men,  33 

Factorising  suit,  form  of  writ,  90 

False  imprisonment,  declaration,  98 

Forcible  entry  and  detainer,  complaint,  123 

verdict,  judgment  and  execution,  1  2\ 

Fine  and  costs  in  criminal  cases,  150 

Form*  in  criminal  cases,  152 

Forgery,  complaint  for,  of  public  securities,  1 59 

complaint  for  forging  note,  161 

for  endorsement  on,  161 
for  publishing  forged  instrument, 

Fornication,  complaint,  179 

Females,  whether  liable  to  be  whipped,  1 85 

Fines  and  Forfeitures,  how  disposed  of,  185 

Foreign  attachment,  service  of,  2 1 5 

return  on,  225 
Final  process,  service  of, 

Service  of  executions  in  common  cases, 

Foreign  attachment,  service  of  execution  on,  2  l(> 
Gambling,  two  justices  may  issue  a  warrant  to  seixe  E. 

O.  table,  14 

action  to  recover  money  lost  at,  K'8 

playing  at  cards,  complaint, 

for  keeping  a  billiard  table, 

taverners  permitting  gaming, 

complaint  against  mountebanks, 
Health,  civil  authority  and  select-men,  a  board  of, 
Houses,  summary  process  to  recover  the  possession  of,  1 1 9 

Venire  for  jurors,  120 

Verdict  and  record  ofjudgthent,  121 

Execution,  122 

Horse,  used  in  a  race,  forfeited,  181 

Habeas  Corpus,  writ  of,  how  served,  218 

return  on,  1'27 

Highways,  how  laid  out  by  select-men,  295 

form  of  notice,  297 

form  of  survey,  and  laying  out  of  highway,  L'!»7 

Encroachment  on  highways,  how  removed,  'J!»0 

Informing  officers,  constables  not  to  act  as  such,  193 

Indenture  of  apprenticeship,  316 
furors,  by  whom  appointed, 


340 

Jurors,  qualifications,  -&& 
how  summoned,  199 
Jurisdiction  of  justices  of  the  peace  in  civil  matters,        36 
Right  of  appeal  where  title  is  plead,  37 
where  right  of  way  is  plead,  37 
Justices  may  take  acknowledgment  of  a  debt,  38 
jurisdiction  as  to  persons,  38 
when  personally  liable  for  their  official  acts,  186 
may  be  called  on  to  the  county  courts,  39 
Jurisdiction  in  criminal  matters,  143 
Judgment,  on  nihil  dicit,  44 
form  of,  44 
concerning  which  in  general,                                 59,61 
Kidnapping,  complaint  for,  156 
record  of  judgment  and  recognizance,  1 57 
mittimus,  158 
Lands,  summary  process  to  recover  the  possession  of,    119 
Venire  for  jury,  120 
Verdict  and  record  of  judgment,  121 
Leases,  when  acknowledgment  required,  25 
when  caveat,  or  caution  to  be  entered,  26 
of  land  for  one  year,  314 
of  a  house  for  do.,  315 
Lottery  tickets,  of  unauthorized  lotteries,  sale  of,  181 
Letter  of  license,  325 
general  of  attorney,  327 
do.  with  the  power  of  substitution.  327 
do.  irrevokable,  328 
Limitation,  in  criminal  cases,  185 
Marriage,  by  whom  solemnized,  27 
publication  and  record  of  same.  27 
Malicious  prosecution,  action  of,  100 
Murder,  complaint  for,  152 
Mountebanks,  complaint  against,  183 
Nonsuits,  42 
form  of,  43 
Notes,  negotiable,  form  of,  309 
Oaths,  by  whom  administered,                                      17,  18 
form  of,  1 8 
witness',  to  persons  having  scruples  of  consci- 
ence, 18 


341 

Oaths,  in  proceedings  before  the  assembly,  18 

poor  debtor's,  proceedings  therein,  19 

form  ot  citation,  19 

Overseer,  where  a  person  refuses  to  submit  to  the  au- 
thority of.irj  overseer,  two  justices  may  bring  him 
before  them,  27,  28 
appointment  by  Select-men,  299 
appointment  by  Select-men  and  two  justices,  301 
form  of  appointment  and  citation,  302 
may  authorise  an  overseer  to  take  such  per- 
son, his  family  and  estate,  under  his  care,  29 

Oyer,  motion  for,  48 

Officers,  resistance  of,  complaint  for,  171 

Obscene  books,  complaint  for  distributing,  179 

Paupers,  282 

when  removable,  30 

form  of  warrant  for,  31 

Pleas  to  the  action,  53,  56 
in  abatement,  to  the  jurisdiction  of  the  court,  136 
for  defect  in  writ,  136 
general  issue,  in  an  action  of  assumpsit,  with  no- 
tice, 136 
several,  in  pursuance  of  the  statute,  137 
replication,  138 
rejoinder,  130 
sur-rejoinder,  139 
record  of  judgment,  1  10 
general  issue,  &  notice  of  set-off  to  action  on  note,  1 4  1 
in  an  action  of  trespass  against  several,  1 4  I 
demurrer,  142 
special,  142 

Process,  in  criminal  cases,  147 

complaint,   by  whom  made,  148 

Perjury,  with  intent  to  take  the  life  of  a  person,  com- 
plaint for,  1  "•.*) 
without  such  intent,  170 
subornation  of,  170 

Peace,  breach  of,  complaint  for,  17.; 

warrant  of  execution  and  recognizance,  1 74 

qui  tam^rocess,  l.< 
surety  of,  complaint  by  an  individual, 
wife  against  her  husband, 
29* 


Peace,  complaint  and  warrant  for  secret  assault,  177 

Profane  swearing,  complaint  for,  179 

Petitions,  service  of,  216 

return  on,  226 

Poor,  overseers  of,  28 1 

houses,  how  established,  295 

Qiu  tarn,  action  of  130 

information  of,  131 

Declaration  for  pound  breach,  131 

for  gaming,  against  the  winner,  132 

information  of,  for  breach  of  peace,  133 

record  of  judgment,  133 

for  trespasses  committed  in  the  night  season,  134 

for  theft,  135 
Riots,  suppression  of,                                                     17,  190 

complaint  for,  172 

Retailers,  how  licensed,  33 

oath  of  clerk,  and  form  of  license,  34 
Records,  how  to  be  disposed  of,  in  case  of  the  death  or 

removal  of  a  justice  ofthe  peace,  42 

Replevin,  action  of,  105 

Declaration,  where  beasts  are  impounded,  106 

Pleadings  and  record  of  judgment,  107 

where  goods  attached  are  replevied,  109 
where  property  is  attached  belonging  to  a 

third  person,  109 

Record  of  judgment,  on  execution,  111 

Rape,  complaint  for,  154 

for  attempt,  155 

For  having  carnal  knowledge  of  a  female  under 

ten  years  of  age,  155 

For  concealing  pregnancy.  155 
Resistance  to  officers,  complaint  for, 

Religious  meeting,  complaint  for  disturbing.  180 
Replevin,  writs  of,  how  served, 

return  on,  226 

Summons,  when  bond  is  required,  9 

service  of,  -01 

Subpoena  for  witnesses,  how  directed, 

Sctrc  Facias,  90 

writ  of,  against  garnishee, 

on  judgment  of  a  justice  deceased. 


34J 

Scire  Facias,  against  administrator  or  executor,  93 
by  administrator  or  executor,  94 
Slander,  action  of,  99 
Stages,  action  for  injuries  by,  J3Q 
Surety  of  the  peace,  when  required,  145 
Sabbath,  breach  of,  complaint,  J80 
Taxes,  justices  issue  warrants  to  collect,  16 
select-men  and  civil  authority  may  abate,  35 
Taverners,  how  appointed,  35 
may  be  admonished  and  their  license  revoked,          35 
Trials,  proceedings  in,  43 
Testimony,  objections  to,  57 
Trespass,  action  of,  95 
Declaration,  quare  clausum  fre^it,  96 
Record  and  recognizance,  where  the  same  is  re- 
moved to  the  county  court,  97 
To  personal  property,  97 
For  debauching  plaintiff's  daughter,  98 
For  cutting  timber,  126 
Trover,  action  of,  99 
declaration  in,  99 
trespass  on  the  case,  action  of,  100 
declaration  in,  for  warranty,  101 
for  fraud,  101 
against  an  officer  for  neglecting  to  levy  or  re- 
turn an  execution,  102 
for  a  false  return,  103 
for  not  taking  property  on  attachment,  103 
to  injuries  arising  from  negligence,  105 
judgment  in,  148 
Theft,  complaint  for  stealing  from  a  person,  164 
for  horse  stealing,  H,4 
for  breaking  and  stealing  from  a  building  in  the 

daytime,  ]C5 

for  simple  theft,  1»;5 

recordand  warrant  of  e'xecution,  _ 166 

qui  tarn  process  for  theft  and  search  warrant,  168 

for  receiving  stolen  goods,  169 

Taxes,  194 

warrants  for,  how  levied,  2G4 

return,  where  land  is  sold,  264 


344 

Taxes,  where  land  is  sold  which  had  b^en  transferred,  265 

deed  of  laud  sold  for  taxes,  266 

another,  267 

United  States,  offence?  against  the  laws  of,  147 

Writs,  by  whom  issued,  9,  11 

Writs,  return  of,  2<-2 

of  error,  how  served,  216 

returns,  or  endorsements  on,  219 

on  summon*,  219 

on  attachments,  220 

where  the  body  is  arrested  and  bail  taken,  222 

bail  bond,  2'c'2 

where  the  defendant  is  committed,  mittimus,  223 

Warrants  issued  after  judgment,  271 

Witness  to  be  committed  for  refusing  to  testify,  and  mit- 

timus for  same,  65 

Windows,  complaint  for  breaking,  173 
Workhouses,  erection  of, 

and  house  of  correction,  -  185 

process  and  sentence  to  the  same,  331 

Will  of  real  and  personal  estate,  328 
form  of  certificate  when  proved  before  a  justice,    329 

of  personal  estate,  330 

ERRATA. 

Page  73,  after  the  sentence  ending  "  now  in  force,"  in  the  7th 
line,  insert  the  following  :  And.  on  the  day  of  at  the  (hf  end- 
ant  was  notified  of  the  premises,  and  demand  of  him  made  of  the 
amount  of  said  execution,  and  the  costs  and  charges  thereon,  which 
the  defendant  neglected  and  refused  to  pay.  The  same  is  to  be 
added  to  the  other  forms  of  declarations  by  the  holder  of  a  note 
not  negotiable,  against  the  endorser. 
.  Page  176,  last  line,  for  '  produce,'  read  procure. 

192,  line  13  from  top,  for  '  requesting,'  read  requested. 


212,  line  3  from  top,  for  '  make,'  read 
do.  line  7  from  bottom,  for  '  a  bail,'  read  bail. 
228,  line  4  from  top,  for  '  enter,'  read  carry. 
do.  line  5  from  bottom,  for  '  presents,'  read  precincts. 

240,  line  20  from  top,  for  '  leave,'  read  levy. 

241,  line  8  from  bottom,  for  '  unto  the  officer  of  the  court," 
read,  into  the  office  of  the  court. 

244,  line  2  from  top,  for  '  leaves  hvo  hundred  dollars/ 

read,  bears  to  two  hundred  dollars. 
246,  line  5  from  top,  for  '  on,'  read  or. 
250,  line  21  from  top,  for  '  entrusted,'  read  interested. 
•353,  line  3  from  top,  for  '  due,'  read  to. 


000020177     2 


